Comcast: FCC's BitTorrent Decision Violated "Fair Notice"

In a filing at the U.S. District Court of Appeals in Washington (DC) Comcast says the Federal Communications Commission's BitTorrent decision was hardly modest (as the FCC claims), was done without the requisite notice, and was unenforceable. Comcast was responding to the FCC's argument in its brief to the court last month that it had the authority to take action against Comcast for "covertly interfering" with BitTorrent peer-to-peer traffic in violation of Internet openness principles -- and doing so in an adjudicatory proceeding rather than a rulemaking. Comcast argues that the FCC violated "basic rules of fair notice" because the conduct it targeted--reducing peer-to-peer traffic on the network--did not violate any FCC rules. "[T]he unenforceability of the Policy Statement has now been confirmed by the initiation of a rulemaking to establish the Policy Statement (and two new principles, including non-discrimination) as enforceable regulations," said Comcast in its brief. Comcast also argues that the FCC's invocation of "virtually the entire Communications Act" for its authority is a regulatory theory that "would free the agency of any meaningful statutory limits on its power, restrict Congress' role to prohibiting agency action rather than, as present law establishes, authorizing such action."