FCC probably can't police Comcast's BitTorrent throttling

[Commentary] Federal regulators are planning to meet on Friday and declare that Comcast violated Net neutrality principles when throttling BitTorrent traffic on its network. This would become the US government's first Network Neutrality-related ruling. There's just one problem with the Federal Communications Commission's plans: They may not be quite, well, legal. In other words, the FCC may not actually have the authority to make its ruling stick. It's true that the FCC adopted a set of principles in August 2005 saying "consumers are entitled to run applications and use services of their choice." But the principles also permit providers' "reasonable network management" and, confusingly, the FCC admitted on the day of their adoption that the guidelines "are not enforceable." If FCC enforcement against Comcast is illegal, why would Chairman Kevin Martin schedule Friday's vote? Only he knows for certain, but one explanation is that if the FCC is embarrassed when slapped down by a federal appeals court two years hence, Martin will have long since departed to a lucrative partnership at a law firm or private equity firm. Friday's ruling may also end up as a cautionary tale for AT&T and Verizon, which as recently as last month seemed to be egging on the FCC to take action against their cable industry rival. But the same activists that have targeted Comcast before the FCC no doubt realize that AT&T's terms of service limit "peer-to-peer applications"; Verizon Wireless flatly prohibits them; Verizon's Fios service blocks incoming port 80. Another term for those network management practices is "Net neutrality violations."