FCC's Spanking of Comcast Raises Jurisdiction Concerns

While the Federal Communication Commission voted 3-2 to punish Comcast for its alleged poor network-management practices, concerns are being raised about the FCC's legal authority over the cable-TV and Internet services provider.

On Friday, the FCC ruled that Comcast had been monitoring and blocking subscribers' use of peer-to-peer file sharing, specifically with BitTorrent P2P software.

Two of the three commissioners, Republicans Robert McDowell and Deborah Taylor Tate, said the FCC's decision against Comcast was based on unclear rules and voted in favor of Comcast. McDowell said the FCC does not have any rules in place governing an ISP's network management.

But FCC Chairman Kevin Martin, who voted against Comcast, said the Supreme Court recognized the FCC's power to enforce its policies under its ancillary authority based on Internet policy adopted in 2005. The FCC policy says Internet users have the right to use legal Web applications, services and devices of their choice.

David Sohn, general policy counsel for the Center for Democracy and Technology, said what Comcast did is a significant problem, but added that the group is concerned about the FCC's broad jurisdiction. "Our position is that what Comcast was doing in the particular tactics they had chosen by singling one particular application -- that is a serious problem and poses real risks for innovation on the Internet," Sohn said. "We do have concerns of the scope of the FCC's authorization to step in and address this problem."

Comcast Considers Legal Options

Comcast said it will comply with the FCC's ruling and provide the agency with an outlined plan of its network-managing practices. But Comcast added it does not believe the FCC has the legal right to control management of its network. "There were not formal rules in this area, so the basis for action they are taking may be questionable," said Sena FitzMaurice,...