Former FCC Chairman: Comcast Action Legality “Murky”

by on August 23, 2008 · 12 comments

William Kennard, Obama for President Telecommunications Adviser, describes the FCC’s jurisdiction in the Comcast case as “murky” today on C-SPAN’s “The Communicators.” Kennard went on to say that enshrining net neutrality into law would be necessary to clear up this authority issue.

This is a guy who knows what he’s talking about. As a former chairman and general counsel for the FCC, he knows just as well as anyone else where the commission’s authority begins and ends.

Many folks involved in the tech policy world don’t agree with the bloggers here at TLF, who oppose network neutrality regulation. But, I’m sure everyone in the tech community would agree that we should maintain the rule of law and stop the abuse and unlawful expansion of government power—something Kennard seems to believe is happening at the FCC.

It seems as though Kevin Martin needs to hit the books and start looking into the legality of his own actions. I hope the good folks at Comcast do the same. With any luck, we’ll soon be seeing both parties in court.

  • http://www.pff.org Barbara Esbin

    I agree wholeheartedly with what Cord has written about the need to maintain the rule of law and cub the FCC's propensity to expand its regulatory reach beyond its statutory boundaries. I have written about this and other issues in my recent piece, “The Law is Whatever the Nobles Do: Undue Process at the FCC.” Although I wrote the piece prior to release of the Comcast P2P Order, having now reviewed the Order, I stand by my analysis. There are myriad legal and procedural problems with the FCC's action, and they will likely doom its chances on appeal. For the complete analysis, please see: http://www.pff.org/issues-pubs/pops/2008/pop15….

  • http://www.cordblomquist.com cordblomquist

    Does anyone know if Comcast is planning to move foward with an appeal? Or is it more political convenient for Comcast to let sleeping dogs lie and live under an illegal regime?

  • http://bennett.com/blog Richard Bennett

    Comcast and the telcos are split on this question. The telcos believe that an unchallenged order takes the wind out of the sails of the people who want a specific net neutrality law from Congress and President Obama, but Comcast doesn't see a difference between being singled out for abuse one way or the other. If I were a betting man, I'd put a few bucks on Comcast going to court.

    There are substantial benefits to a regulatory regime that can be blown up any time it gets truly annoying, so there's an outside chance Comcast will let it lie.

  • http://www.cordblomquist.com cordblomquist

    So Comcast and other ISPs should let the FCC continue along for a little while and as soon as they get uppity, challenge the decision in court. It might be much more politically advantageous to have a headline like “FCC's five year-old network neutrality regime illegal” rather than one that reads “Comcast decision repealed.” Might make the FCC appear illegitimate and incompetent as a regulatory body.

  • http://bennett.com/blog Richard Bennett

    As long as Comcast hasn't been ordered to do anything there aren't already doing, it's not clear they should challenge the order anyhow. The one part that would annoy me if I were Comcast is open-ended disclosure of network data to the FCC. This has a competitive impact as it opens details of network operation to Comcast competitors.

    The order is also not specific with respect to exactly what they're supposed to stop doing and why: is it about RSTs, quotas, or DPI? In what combination?

    The FCC doesn't want to say which practices are permitted, which are banned, and how a person of ordinary intelligence can tell the difference.

  • http://www.cordblomquist.com cordblomquist

    So Comcast and other ISPs should let the FCC continue along for a little while and as soon as they get uppity, challenge the decision in court. It might be much more politically advantageous to have a headline like “FCC's five year-old network neutrality regime illegal” rather than one that reads “Comcast decision repealed.” Might make the FCC appear illegitimate and incompetent as a regulatory body.

  • http://bennett.com/blog Richard Bennett

    As long as Comcast hasn't been ordered to do anything there aren't already doing, it's not clear they should challenge the order anyhow. The one part that would annoy me if I were Comcast is open-ended disclosure of network data to the FCC. This has a competitive impact as it opens details of network operation to Comcast competitors.

    The order is also not specific with respect to exactly what they're supposed to stop doing and why: is it about RSTs, quotas, or DPI? In what combination?

    The FCC doesn't want to say which practices are permitted, which are banned, and how a person of ordinary intelligence can tell the difference.

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