What Comcast Wants
July 9th, 2008 by Marvin AmmoriYesterday, I read a blog post from Comcast lobbyist Joseph Waz about “what Free Press wants.” He strikes a conspiratorial tone but completely misses the mark.
As coordinator of SavetheInternet.com, Free Press has always been clear about what we want. We want to ensure that all Americans, not just big corporations and their lobbying gangs, have a seat at the table in policy debates. We also want to protect the free and open Internet that we have always enjoyed. And finally, we want to make sure that lawmakers punish any company that tries to illegally insert itself as gatekeeper between consumers and online content.
Unfortunately for the cable giant, what Free Press and the public want is the exact opposite of what Comcast wants. Comcast wants to monopolize your Internet connection, block online competitors, and control what consumers do online. Comcast wants to turn the Internet into cable TV, where every Web site has to cut a special deal with them to get carried or else get blocked. And Comcast wants to be above the law while doing this.
Lowering the Bar
We’re not exaggerating. Comcast is a company that continues to set a low bar for the broadband industry. To remind everyone: In 2005, the FCC unanimously adopted a Policy Statement, which guaranteed all consumers the right to access all lawful content and all applications online. Comcast was caught violating that right by degrading and blocking some of the Internet’s most popular and democratic applications.
Comcast did this to stomp out a future competitor to their own video services, as these innovative applications represent the future of online television, putting thousands of high-definition channels online.
Despite the FCC’s investigation, massive public outcry and over-hyped side deals – Comcast never stopped engaging in this illegal practice.
Comcast said it was “delaying” traffic in times and places of congestion, to “manage” heavy users. We rebutted this technical-sounding nonsense months ago with expert tests showing that Comcast was blocking everyone and at all times of the day and night.
Here’s who else called Comcast’s bluff: Internet pioneers David Reed and David Clark, network guru Robb Topolski, and Carnegie Mellon Professor Jon Peha — among others.
Lies and Lying Liars
Left without technical defense, Comcast has resorted to lies and misdirection.
Those following this issue closely know that Comcast has a honed lying method™ the same way a fine actor might have an “acting method.”
Comcast has two main lies they’re telling about administrative law and jurisdiction. About a month ago, we filed two memos, about 50 pages total, on these two lies, but here’s the Cliff’s Notes version.
Comcast Lie No. 1: Congress never gave the FCC authority to enforce Net Neutrality.
Truth: Congress gave the FCC more than enough authority to enforce Net Neutrality and to punish Comcast for its violation.
This authority comes directly from the 1934 Communications Act – the foundation of communications law in this country. There are eight provisions in that Act that give the FCC authority. Without that authority, the FCC wouldn’t be able to protect consumers using the most important new communication medium — the Internet — even though Congress gave the FCC authority over all communication by wire or radio.
The FCC only needs one provision; it has eight-times the authority it needs – pretty straightforward. Those interested in greater detail can check out our legal memo.
Behind the music: As was the case with their bogus technical defense, there is virtually no one who supports Comcast’s legal argument. President Bush disagrees with Comcast, so does presumptive Democratic presidential nominee Sen. Barack Obama (D-Ill.), along with all five FCC Commissioners. And remarkably, even the phone companies side against Comcast on this one.
But by far the most astounding disagreement comes from Comcast itself. As we pointed out a couple weeks ago in our legal memo, in an attempt to fend off a California class-action lawsuit, Comcast is arguing that Internet issues have “been firmly placed within the jurisdiction of the Federal Communications Commission, an administrative agency whose authority to regulate Internet broadband access companies’ services is well-established.”
Apparently Comcast’s California branch didn’t get the memo from the FCC branch.
Comcast Lie No. 2: The FCC can’t punish Comcast because the agency didn’t issue a “rule” about Net Neutrality — only a “policy statement.”
Truth: The Supreme Court and Congress have made it clear that a federal agency like the FCC can act either through rules or a complaint processes.
It’s astounding that a company with an army of high-priced lawyers would even try to dispute this, as it is a basic fact taught on day one of any administrative law class. Some agencies don’t even bother to issue rules; they make all policy through the precedent of case-by-case processes. The courts have said the whole point of policy statements is to let the industry and the public know how the agency will act when faced with a complaint. That’s what happened here, and it’s what agencies do all the time.
Behind the Music: Because the other lie seems to be a dud, Comcast is pushing this one more and more. Despite Comcast’s increased push, this argument is a sure loser. The Supreme Court and any lower court would unanimously reject the argument. Like the first lie, it’s frivolous.
The Bottom Line
The FCC should act now. It doesn’t need to worry about Comcast’s distracting legal twists. Working through its lobbyist army, Comcast hopes for a surprise ending where the FCC decides that the law applies to everyone except Comcast. But the public should get the Hollywood ending in this summer blockbuster, where the good guys win and the bad guys are held to account. The one where the FCC sides with consumers and punishes Comcast for its illegal actions, and consumers aren’t subjected to a sequel.
