In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast

Citation: In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications and Broadband Industry Practices Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC’s Internet Policy Statement and Does Not Meet an Exception for “Reasonable Network Management,” 23 FCC Rcd 13028 (2008).

Factual Background
In 2007, through various experiments by the media, most notably the Associated Press, it became clear that Comcast was intermittently blocking the use of an application called BitTorrentTM and, possibly, other peer-to-peer (P2P) file sharing programs on its network. Comcast eventually admitted to the practice and agreed to cease blocking the use of the P2P applications on its network. However, Comcast maintains that its actions were reasonable network management and not in violation of the Federal Communications Commission’s (“FCC” or “Commission”) policy.

FCC Proceedings
In response to a petition from Free Press for a declaratory ruling that Comcast’s blocking of P2P applications was not “reasonable network management,” the FCC conducted an investigation into Comcast’s network management practices. The FCC determined that Comcast had violated the agency’s Internet Policy Statement when it blocked certain applications on its network and that the practice at issue in this case was not “reasonable network management.”

The FCC declined to fine Comcast, because its Internet Policy Statement had never previously been the basis for enforcement forfeitures.

Court Proceedings
Comcast has appealed this decision to the U.S. Court of Appeals for the D.C. Circuit, as have other public interest groups. Comcast argues that the FCC does not have the authority to enforce its Network Management Principles and the Commission’s order was invalid for that reason. The Commission argues that it has ancillary authority under Title I of the Communications Act to implement the broad statutory goals for an open, user-controlled Internet laid out by Congress. If the court finds that the FCC does not have the authority to adjudicate based on its Internet Policy Statement, Congress may face the question whether to act to give the FCC such authority in order to prevent anticompetitive conduct by broadband access providers. If the court finds that the FCC acted properly, the agency may continue to enforce these broad principles on a case-by-case basis.