I Suggest Giving Comcast What It Asks For . . . . Heh, Heh, Heh . . . .

As the FCC’s examination into our complaint against Comcast winds down, with what looks like a win for us (although with an opponent like Comcast, I am not going to celebrate a win until after the order is voted), Comcast has increased its efforts to woo McDowell and Tate with a show that “the market” will magically cure all ills by cutting a non-aggression pact with Vonage and a new ex parte filing listing all the wonderful things it has done since the Commission put our complaint out on public notice, which is an obvious sign that no regulatory action is necessary since it is merely coincidence that Comcast (and other broadband providers) have been scrambling with ever more serious urgency as the resolution of the complaint moves closer. Ah Comcast “Change we can believe in until all you stupid regulators go away and we can get back to crushing folks like insects beneath our fiber-coax heel.”

More of interest to us legal (and less credulous) types, Comcast filed a lengthy rebuttal to Marvin Amori’s magnum opus on Commission jursidiction. Marvin’s piece was, of course, a response to the Comcast filing after the Boston Hearing, that asserted the FCC had no authority to sanction Comcast or regulate Comcast’s broadband in the first place. Mind you, Comcast told the a California district court otherwise, and got a stay of the pending class action for blocking bittorrent as a consequence. But the first lesson of law school is that consistency is only a virtue if it serves your client. In any event, this most recent filing (which has not yet shown up online for me to link to) is therefore either the rebuttal to FP’s reply or merely the Nth go round in a “permit but disclose” proceeding.

This is reflected by Comcast’s argument, which largely rehashes previous arguments about the limits of Commission authority and whether Comcast had proper notice it could be subject to a civil complaint and civil sanction. Fair enough. Time now for the FCC to decide and then on to the D.C. Circuit. That’s what process is for, to get the arguments out so we can get a judgment and get on with our lives.

But Comcast does raise one new argument, and an intriguing one at that. And ya know, I think the Commission ought to give it to them. Heh, heh, heh . . .

Why am I chuckling? See below . . . .

Comcast’s filing pulls out a fair number of stops on procedural matters. Most are either rehashes (i.e., Comcast couldn’t have known the Commission would enforce its policy statement through an adjudication) or rather silly (expanding on the statutory authority issue somehow amounts to “a whole new theory” at “the 11th hour” and is not cognizable). But one new argument raised by Comcast does raise an interesting question. Comcast argues that Section 312(b) and (c) of the Communications Act requires the Commission to jump through certain hoops before issuing a cease and desist order. To quote the relevant sections:

Where any person
(1) has failed to operate substantially as set forth in a license,
(2) has violated or failed to observe any of the provisions of this chapter, or section 1304, 1343, or 1464 of title 18, or
(3) has violated or failed to observe any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States, the Commission may order such person to cease and desist from such action.

(c) Order to show cause
Before revoking a license or permit pursuant to subsection (a) of this section, or issuing a cease and desist order pursuant to subsection (b) of this section, the Commission shall serve upon the licensee, permittee, or person involved an order to show cause why an order of revocation or a cease and desist order should not be issued. Any such order to show cause shall contain a statement of the matters with respect to which the Commission is inquiring and shall call upon said licensee, permittee, or person to appear before the Commission at a time and place stated in the order, but in no event less than thirty days after the receipt of such order, and give evidence upon the matter specified therein; except that where safety of life or property is involved, the Commission may provide in the order for a shorter period. If after hearing, or a waiver thereof, the Commission determines that an order of revocation or a cease and desist order should issue, it shall issue such order, which shall include a statement of the findings of the Commission and the grounds and reasons therefor and specify the effective date of the order, and shall cause the same to be served on said licensee, permittee, or person.

Mind you, this appears in Title III, in the section entitled “Administrative Sanctions” and is usually regarded as referring only to Title III licensees, i.e. people holding Commission licenses to use wireless services such as broadcasting. True, Cable operators have Title III licenses, called CARS licenses, but — as the cable operators keep reminding us — what is at issue here is the Title I broadband access service. I think the applicability of a provision governing Title III sanctions to a Title I complaint is rather weak. Nor does it prevent the FCC from fining Comcast $500 per day per offense under Section 502. By it’s terms, Section 312 only applies to “cease and desist orders.”

But why quibble, and set up a possible problem for appeal. I have a better idea. Why not give Comcast what they want?

Mind you, since a notice of apparent liability does not require a vote, let Martin issue (through the Enforcement Bureau) a citation and Notice of Apparent Liability Today, using the Order he apparently intends to circulate. Since this is the Notice of Apparent Liability, the Bureau need not address (at this stage) Comcast’s procedural arguments. They will do that at the hearing Comcast has demanded. The Bureau may also, on its own authority, issue an interlocutory stay of the Comcast network management practices at issue until the hearing demanded by Comcast. After all, by its terms, Section 312 applies only to permanent cease and desist orders. The authority to issue immediate stays pending an administrative hearing is rooted in Section 4(i). True the other Commissioners would not have a chance to vote on the stay request or the Notice of Apparent Liability, so the Bureau could just do it under Martin’s drection. But we wouldn’t want to deprive Comcast of its 312(c) due process rights.

Nor need the Commission wait “30 days or more” until the hearing — although with a temporary stay in place pending resolution I know I wouldn’t mind. Comcast’s conduct clearly puts the “safety of life or property” (emphasis added) at risk. Each day of Comcast’s conduct, the safety of legally obtained (and subject to copyright) bittorrent files is at risk from Comcast’s blocking. Delivery of software bought and paid for is at risk. Millions of dollars in internet commerce, including the investment by people and businesses in hardware and software pertaining to legal use of Bittorrent, is at risk. Rather than a meeting in Pittsburgh on broadband and the digital future, why not make that Comcast’s Section 312(c) evidentiary hearing? After all, we wouldn’t want to deprive Comcast of the process it believes it is due. I particularly look forward to the evidence Comcast will provide to rebut the specific charges the Commission shall list in the Notice.

Oh, and while we are applying Title III provisions, I would add that the Commission should immediately suspend Comcast’s CARS licenses, and all other Title III licenses related to provision of its broadband service, pursuant to Section 303(m)(1)(E), which states that the Commission may suspend the license of any operators that “has willfully or maliciously interfered with any other radio communications or signals.” It is not disputed that Comcast has willfully interfered with the signals of others. The only question of law is whether the interference is permissible as a form of reasonable network management, or not. Mind you, the Commission would still need to give Comcast 15 days to request a hearing, which –unlike the Section 312(b) hearing — shall be conducted “under such rules as the Commission may prescribe.”

Because hey, if Comcast wants to do this under Title III, rather than under Title I or Title II, I think we should respect that. I would not want them to feel they didn’t get the due process they deserve, after all.

Stay tuned . . . .


  1. According to what I’ve read, Martin’s ruling is based on a document identified as FCC 05-151, and that has a footnote which says “Accordingly, we are not adopting rules in this policy statement.” You’d know better than I, but that strikes me as giving the FCC a very weak case for claiming the document as binding.

  2. I raz you guys from time to time. But this time — Kudos, good job.

    Comcast has not been operating in good faith the public. They deserve it.

  3. Gary McGath: Well, that’s what the many hundreds of pages of briefing have been about. The fact is that an agency may announce rules by adjudication or by rulemaking. You may think that’s unfair, but it’s actually the more traditional way. The National Labor Relations Board, for example, usually announces rules by adjudication. It is, after all, how courts define what it means to break the law or not.

    Comcast has a number of reasons why we shouldn’t be able to do this on the basis of adjudication. We have argued otherwise. I have posted a few things on the matter. Obviously, I think we have the better case. They think otherwise. I would say the matter is non-obvious, which is why we also filed a Petition for Declaratory ruling, and Vuze has a Petition for Rulemaking. Take your pick, FCC!

  4. Harold, your expression of schadenfreude at a potential ruling regarding Comcast — and it’s only a potential ruling, so NO ONE knows the details — reveals that you do not care whether such a ruling would destroy broadband competition, or harm broadband deployment, or drive rural or independent ISPs out of business (leaving consumers with no choice). In fact, you do not seem to care about the public interest at all, even though you supposedly work for a “public interest” organization. You simply want to score a “victory” against the “evil” Comcast.

    This even though, in fact, Comcast has done nothing more than preserve its quality of service by preventing a few bandwidth hogs from taking over its network as they downloaded illegally pirated music, pirated video, and pornography.

    And this even though you’ll be hurting the causes you’ve claimed to champion — including widespread broadband deployment. But then again, we all know that such hypocrisy is the coin of the realm among Washington lobbyists.

    Bottom line, when we cut through all of the legal mumbo jumbo: you’re being an inside-the-Beltway lawyer and lobbyist. Not the type to whom our government should be listening.

    By the way: Kevin Martin has announced that he is not advocating any penalty for Comcast. I suspect that the product of the top-secret proposal will be, at most, a notice of proposed rulemaking — hopefully to make more reasonable and sensible rules than the bad ones suggested by the FCC’s “policy statement.” For example, the mandate that ISPs allow users to run “applications of their choice” when on the Net (as opposed to off the Net, where they can do no damage) is absurd. Allowing users to run “applications of their choice” while connected to the network simply means that there are no rules of behavior at all — which in turn means that there can be no terms of service that limit abuse. And this is simply untenable on today’s Internet.

  5. “Rules by adjudication.” That’s another name for “making up the rules as we go along” or “ex post facto.”

    Imagine applying “rules by adjudication” to anything besides the government regulation in which it’s become traditional. Imagine a student getting called up on some charge, and when he asks what rule he’s violated, he’s told that the school is going to make “rules by adjudication.”

    It’s not adjudication if it isn’t based on rules that already exist. It’s retroactive fiat.

  6. It’s more than “retroactive fiat.” It is arbitrary, capricious, and unconstitutional.

    The FCC said that it’s policy statement was not binding and did not constitute rulemaking (it did not go through a period of public comment where the public had a chance to point out potentially serious problems, such as the very dangerous “any application” clause). To penalize Comcast would retroactively turn this nonbinding statement into a set of rules enacted without due process — an end run around the proper rulemaking procedure — and then enforce them ex post facto.

  7. P.S. — Also see Comcast’s most recent comment in the docket, which debunks Harold’s arguments above as well as the ones made in Free Press’ latest filing: _or_pdf=pdf&id_document=6520033818″ rel=”nofollow”>http://gullfoss2.fcc.gov/pr…

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