When the Federal Communications Commission decided to sanction Comcast for its network management practices that involved forging reset packets to shut down peer-to-peer networking applications like BitTorrent and Gnutella, the cable giant was widely expected to appeal the decision. Now, it has done so, filing a short appeal with the Washington D.C. Court of Appeals, arguing the FCC does not have the authority to sanction Comcast based solely on a policy statement, rather than actual enacted regulations.
The dispute comes from the FCC’s Internet Policy Statement, issued in 2005 (PDF) the states consumers are entitled to access the Internet using whatever lawful applications and services they like, and that they are entiteld to competition amongst network, application, service, and content providers. The FCC sanctioned Comcast for shutting down user’s peer-to-peering networking sessions using forged reset packets. Comcast at first denied the charge, then claimed the practice was within the bounds of “reasonable network management” in order to manage traffic congestion on its network. The FCC disagreed; Comcast has since promised to deploy a protocol-agnostic traffic management system that will degrade the connections of heaviest users during periods of peak traffic, and will be introducing monthly bandwidth limits to restrict the activities of its heaviest users.
Comcast says it intends to comply with the FCC’s order while its appeal is in process; the legal intent of the appeal is not to wiggle out from under the specifics of the FCC’s sanctions, but to prevent the FCC from setting a legal precedent that it has the power to sanction companies solely on the basis of violating a policy statement, rather than an official regulation. Policy statements are drafted and issued by the FCC commissioners and undergo little to no formal process; official regulations must be enacted using a well-established set of rules, reviews, and procedures.
