FCC To Defend Reprimand Of Comcast For Internet Practices

The Federal Communications Commission will go before a federal appeals court Friday to defend its 2008 citation against Comcast for throttling Internet traffic from high-bandwidth file-sharing services, a case that could throw into question the FCC's authority to impose open Internet rules.

Comcast plans to argue that the FCC went too far in issuing the citation because it didn't rely on specific parts of communications law, according to a summary of court briefs. If the court approves the FCC's "expansive" theory, Comcast argues, the balance of power between Congress and the Administration could be severely hampered. "If Comcast's most extreme argument were adopted by the DC Circuit, then we would have to either change fundamentally our regulatory approach, or look to the Supreme Court or Congress to restore that power," said FCC General Counsel Austin Schlick.

The appeals court isn't likely to go that far, in part because it has ruled in the past that the FCC is entitled to regulate other emerging communications services, such as cable. A ruling upholding the FCC's reasoning could have the opposite effect, however. The court could give an "indirect green-light to Chairman Genachowski's campaign for a bolder open Internet policy that's a cornerstone of the Obama administration's tech agenda," said Jeffrey Silva, senior media and technology director at Medley Global Advisors.

The judges also could decide that the legal provisions the FCC relies on aren't sufficient to justify its action against Comcast, which could make it more difficult for the agency to finalize the open Internet rules. Alternatively, the court could ignore the question of whether the FCC has the authority to punish Internet companies for violating openness principles and focus instead on Comcast's argument that the FCC didn't give enough notice before it slapped the cable giant.

If the court agrees that the FCC violated basic rules of fair notice, it would be a win for Comcast, but that decision alone wouldn't necessarily upset the FCC's current open Internet rulemaking.