It was the hottest ticket in town, a hearing in the high-profile fight about Internet network regulation between media giant Comcast Corp. and the Federal Communications Commission. The FCC had a seat at the front table. But for this show, the FCC perhaps wishes it had been in the back.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit didn’t seem keen on letting stand an FCC finding that Comcast violated “federal internet policy” in interfering with use for certain subscribers. Those consumers were using peer-to-peer software to exchange, among other things, bandwidth-heavy video. Comcast has since abandoned the network management practice that was subject to a complaint at the FCC. The commission did not fine Comcast.
Wiley Rein partner Helgi Walker, representing Comcast, argued today that the FCC was outside its bounds when it crafted and enforced a policy statement—“basically a piece of paper,” Walker called it—against Comcast. That statement, Walker argued, isn’t enforceable. The FCC is now in the rule-making process, a move that began after the August 2008 order was lodged against Comcast. Walker said Comcast has suffered, among other things, harm to its reputation.
The appellate panel—Chief Judge David Sentelle was sitting with Judge David Tatel and Senior Judge A. Raymond Randolph—pressed FCC General Counsel Austin Schlick to back up the FCC’s position that it has the authority to enforce the policy.
Randolph commented that the FCC’s position in the case is “antiquated”—that the FCC is acting on its own without statutory authority from Congress. “What independent authority did the commission have to regulate the Internet?” Randolph asked. Tatel questioned the limits of the FCC policy enforcement—whether the FCC could regulate the volume of e-mail any one subscriber sends and receives.
Supporting Comcast, Howard Symons, chair of the communications practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, argued for intervenors who included NBC Universal and the National Cable & Telecommunications Association. Symons said the order subjects the entire industry to “vague” standards and provides no guidance on determining permitted conduct.
Backing the FCC in the litigation were consumer groups that included Free Press, Consumer Federation of America and the Open Internet Coalition. Free Press General Counsel Marvin Ammori argued for the intervenors who are supporting the FCC.
It’s rarely hard to get a seat for argument at the D.C. Circuit. Today’s case drew a crowd of more than 125 people. Some spectators lined the back wall of the courtroom. With all the talk of technology, no recording devices—video and audio—were not allowed in the courtroom.
A court staffer jokingly said “see you all in a couple of years” as the court observers left and grabbed their coats after the hearing.