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It’s the 11th hour for Comcast at the Federal Communications Commission. They were caught secretly blocking legal Internet traffic. They lied about it. On Friday, a bipartisan majority at the FCC is expected to finally hold them accountable.

Let’s review Comcast’s strategy so far:

When a network expert and barbershop quartet enthusiast figured out his legal file-sharing was being disrupted, Comcast denied it.

When the Associated Press, Electronic Frontier Foundation and Germany’s prestigious Max Planck Institute backed up his claims, Comcast stonewalled.

When the FCC held a public hearing on blocking, Comcast hired seat-fillers off the street to pack the room and applaud on cue. When the FCC held another hearing, they refused to show up.

None of that worked. So now they’re hounding the press with specious legal arguments and personal attacks on those who would dare challenge the cable giant.

Most responsible reporters see right through this bunk. But the cable flacks know there’s one place that always welcomes corporate spin: the Wall Street Journal editorial page. Where else?

All Bark But Not Right

On cue, the Journal unleashed the chihuahuas on FCC Chairman Kevin Martin on Wednesday. Yip! Yip!

The irony is that Martin is normally the Journal’s type: A conservative Republican committed to “deregulation” taking action in the name of free market competition. But to understand that, you’d have to actually look at the evidence.

The Journal’s bogus arguments — which come straight out of the cableco hymnal — will be familiar to anyone who has followed the Net Neutrality debate (or readers of Monday’s Washington Post). But since Journal editorials are appended to the business paper of record, I suppose they merit a response.

Here are a few of the more egregious myths and misperceptions included in the Journal’s latest screed:

Myth: “Martin is forcing a solution in search of a problem.”

Reality: This canard is an old favorite of the phone and cable crowd. But the problem is clear: Comcast was secretly blocking Internet users from accessing and distributing legal content. It got caught. It must be held responsible.

Myth: “By all appearances, the company’s policies were motivated by nothing more than making sure a tiny percentage of bandwidth hogs didn’t slow down Internet traffic for everyone else on the network.”

Reality: Simply untrue. All of the independent tests clearly show that Comcast wasn’t just aiming for a few high-bandwidth users at peak moments; they were secretly blocking peer-to-peer protocols all day and night regardless of the size of files being transferred or how often those customers used the Internet.

Myth: “Earlier this year, the cable company reached an agreement with BitTorrent, the popular file-sharing service being used on Comcast’s network, and settled the matter.”

Reality: In the face of intense government and public scrutiny, Comcast issued a press release touting a side deal with the company named BitTorrent. But other firms using the same technology, like Vuze and Miro, weren’t consulted. This paper-thin pact won’t prevent other cable and phone companies from blocking traffic on their networks. And it doesn’t apply to the next whiz-bang technology that some kid destined for the cover of Wired is cooking up in her basement right now.

Myth: “The chairman is taking a huge step toward putting in place a regulatory regime that would give the FCC … unprecedented control over how consumers use the Web.”

Reality: The Wall Street Journal loves nothing more than breaking out the bogeyman of “regulation.” But the Internet we have today wouldn’t exist without rules, and there will be rules going forward. What really matters is whether those rules will serve only the interest of a few big companies or benefit the rest of us who actually use the Internet everyday.

Myth: “It’s also not clear that the FCC even has the authority to enforce net neutrality, because Congress has never passed a law establishing such a policy.”

Reality: The FCC’s authority to act on a complaint here is clearly established under the Communications Act and backed up by the Supreme Court. But that of course shouldn’t stop Congress from passing a law like the Internet Freedom Preservation Act (HR 5353). We need strong safeguards on all the networks of the 21st century.

Myth: “If Comcast customers don’t like the company’s network management policies, they’re free to take their business to Verizon, or AT&T, or some other Internet service provider.”

Reality: If only that were true. Unfortunately, the phone and cable companies dominate nearly 99 percent of the market for Internet access. Americans are lucky if they have two choices, and many of us have just a single broadband option (and an unfortunate few have no service at all). If all the major carriers want to discriminate, as they’ve indicated they will, there’s nowhere else for consumers to turn. That’s why Congress and the FCC must step in.

Comcast can howl all it wants, but the FCC shouldn’t listen.

As they say in Texas, that dog won’t hunt.

A bipartisan majority of the Federal Communications Commission has reportedly voted to punish Comcast, the nation’s largest cable company, for blocking consumers’ access to the open Internet.

According to press reports, Commissioners Michael Copps and Jonathan Adelstein have voted with Chairman Kevin Martin for an “enforcement order” that would require Comcast to stop blocking and publicly disclose its network management practices. The order is adopted once all five commissioners have cast their votes.

Last fall, tests by the Associated Press and others exposed that Comcast was blocking users’ legal peer-to-peer traffic by sending fake signals that cut off the connection between file-sharers. The Max Planck Institute in Germany later confirmed that Comcast was blocking peer-to-peer traffic at all times of the day and night — not just during times of peak Internet use.

Today’s vote follows a months-long FCC investigation, launched in response to filings by Free Press and members of the SavetheInternet.com Coalition urging the federal agency to stop Comcast’s harmful blocking. Since January, tens of thousands of people have filed comments with the commission, and hundreds have attended public hearings at Harvard, Stanford and Carnegie Mellon universities.

“This vote reflects the bipartisan support for protecting consumers’ access to the free and open Internet,” said Marvin Ammori, general counsel of Free Press and author of the filings.

Comcast’s blocking is a flagrant violation of the online rights established by the FCC. If adopted, this order would send a strong signal to the marketplace that arbitrarily interfering with users’ online choices is not acceptable. Internet service providers do not get to decide the winners and losers online.

“Should Comcast finally be held accountable for its illegal practices, it will be the direct result of historic public involvement in this precedent-setting debate,” Ammori added. “We look forward to seeing the order, and commend the FCC for conducting such a thorough investigation on behalf of Internet users everywhere.”

It’s unusual for federal bureaucrats to achieve rock star status, but two commissioners at the Federal Communications Commission have amassed an enthusiastic fan base among the emerging “Open Internet” movement.

For several years, Democratic Commissioners Jonathan Adelstein and Michael Copps have stood up, spoke out and worked all the angles at the cavernous FCC in defense of an Internet that is open, neutral, accessible and affordable to everyone.

Adelstein joins the North Mississippi All-Stars at the National Conference for Media Reform

These are the bedrock principles of a growing movement of bloggers, media makers, online activists and organizers who are fighting for unfettered access to the Net.

While in the minority, Adelstein and Copps have been joined by a somewhat unlikely ally in Republican FCC Chairman Kevin Martin. The three of them are now poised to deliver a major victory to the little guys against one of the country’s biggest and most ruthless media companies.

The Making of the Movement

Adelstein and Copps’ crusade on the Internet’s behalf hasn’t been easy.

Lining up against them in Washington is an army of hired legal guns and lobbyists working for the likes of Comcast, AT&T and Verizon. Every day, they swarm the FCC and Capitol Hill to blast away at any rule that would prevent their clients from becoming the new gatekeepers to the Web.

Who ultimately controls the Internet is a question that has galvanized millions of Internet activists in recent years.

Grassroots groups like SavetheInternet.com, Free Press (my employer), Public Knowledge, ACLU, MoveOn.org, Common Cause and Electronic Frontier Foundation see the Internet as the future of all media -at a time when more and more people are taking charge of their TV watching, music listening and other rich media experiences via a high-speed connection.

Using the Internet to Save the Internet

Millions of their supporters have used the tools of the Internet to send Washington a powerful political message: “Don’t side with special interests and strip away our online freedoms.”

In 2006, Capitol Hill was poised to pass a telco-friendly communications bill opposed by public advocacy groups for lacking basic consumer protections. More than 1.5 million people wrote letters to Congress, attended protest rallies across the country and organized using MySpace, Facebook and YouTube. The bill died on the Senate floor.

In 2007, the FCC was poised to hand over a valuable chunk of spectrum with no strings attached to powerful wireless companies. More than a quarter million people wrote the FCC demanding “open access” to these airwaves. The FCC attached some openness conditions before putting the spectrum out for bid.

When Verizon Wireless censored text messages by NARAL Pro-Choice America in late 2007, they sent tens of thousands of letters to Washington. Under intense public and media scrutiny, Verizon reversed its decision and let the NARAL messages through.

New Media Democracy

“Consumers don’t want the Internet to become another version of old media — dominated by a handful of companies,” Adelstein told an enthusiastic audience during a FCC hearing in Pittsburgh earlier this week. “They want choice.”

In June, Commissioner Copps asked a crowd at the National Conference for Media Reform: “If you want to blog about local politics, should you really have to pay some huge gatekeeper for every reader you get? Should anyone be telling you what you can read and see and hear on the Internet? Which applications you can run? Which devices you can use?”

He pledged alongside Commissioner Adelstein to “do everything we can” to ensure that the Internet looks like “real media democracy.”

Adelstein and Copps’ tenure in Washington has come under a Republican-led FCC, which has routinely supported industry efforts to whittle away many of the user freedoms that are fundamental to preserving the Internet’s democratic character.

The agency has become embroiled in an issue called “Net Neutrality” — the fundamental safeguard for users’ ability to go where they want, do what they choose and connect with whomever they like every time they boot up the Internet.

Net Neutrality has pitted Internet rights advocates from across the political spectrum against powerful phone and cable companies, which now control broadband access for nearly 99 percent of American users. But Adelstein and Copps have broken with the well-heeled lobbyists to take a principled stand for a people-powered Internet.

Beating Back Comcast

When AT&T announced its plans to merge with BellSouth in 2006, it was the two Democrats who attached Net Neutrality as a two-year condition of the merger and then strong armed Republican members of the commission to sign off on the terms.

Now the FCC faces a new opportunity to establish Net Neutrality as the guiding principle of the Internet.

Earlier this month Chairman Martin announced that he would recommend punishing Comcast Corp. for violating Net Neutrality and blocking subscribers’ Internet traffic.

While the final order hasn’t come out yet, it’s worthwhile to look at how we got here. The Republican Chairman should get a lot of credit for his handling of the Comcast case, including holding public hearings on the issue.

But Adelstein and Copps have walked with the public every step of the way on Net Neutrality.

Now they stand ready to join with Martin against Comcast (Their vote is expected to happen during the August 1 monthly meeting of the five commissioners). This decision would set an historic legal precedent for all those fighting to keep the Internet free of corporate gatekeepers.

“Both commissioners have really shown their mettle on this issue,” blogger Matt Stoller of OpenLeft.com said during last week’s Netroots Nation conference in Austin. “Copps has been a visionary and a firebrand for the netroots. Adelstein has shown bravery by breaking with the conventional wisdom of Washington for the good of everyone else.”

The Federal Communications Commission needs to help keep the Internet free of corporate gatekeepers and available to every American, witnesses and the public told the agency’s five commissioners at a hearing last night in Pittsburgh.

“I believe so strongly in an open internet for everyone,” said Rep. Mike Doyle, who was instrumental in organizing the hearing. “That’s why, as Vice-Chairman of the Subcommittee on Telecommunications and the Internet in the House Energy and Commerce Committee, I’ve been working to develop federal policies that keep the Internet open.”

Adelstein: Don’t let old media control the Internet Listen to a report from Pittsburgh

Doyle said the hearing should address two leading concerns: bridging the “digital divide” so that all Americans “can compete in a global economy,” and Net Neutrality — preventing Internet gatekeepers from filtering, blocking or spying on legal content.

Not Another Version of Old Media

“Consumers don’t want the Internet to become another version of old media — dominated by a handful of companies. They want choice,” FCC Commissioner Jonathan Adelstein told the more than 250 people in attendance Monday night.

Adelstein spoke about the increasing use of video by millions of people, pointing to the popularity of YouTube and other online video services.

“The FCC needs to continue to promote bandwidth capacity to make the next generation of using the Internet possible,” he said.

To get there, Adelstein and others have been pushing for a national broadband plan that involves private-public partnerships to “incentivise this build out and make sure that our networks are open and neutral.”

No Gatekeepers

The FCC should take immediate action against network providers that block or filter access to online applications, said Marge Krueger of the Communications Workers of America.

Earlier this month FCC Chairman Kevin Martin announced his intention to take action against cable giant Comcast for illegally violating Net Neutrality, after a coalition of Net users and activists caught the cable giant blocking open access to the Internet.

And just last week, bipartisan members of the House Subcommittee on Telecommunications and the Internet blasted companies like NebuAd that seek to work with ISPs to spy on user’s Internet activity without first seeking consent.

CWA’s Krueger joined other speakers and members of the audience in calling for a comprehensive broadband policy that would help restore America’s flagging leadership in broadband services and availability

The Dimensions of the Divide

America’s digital divide is delineated by class, location and race. Only 35 percent of American homes with less than $50,000 in annual income have broadband, according to the Census Bureau, while 76 percent of households earning more than $50,000 per year are connected.

Meanwhile nearly 20 million Americans live in areas not served by a single broadband provider, while tens of millions more live in places with just a single source for high-speed Internet. Just 39 percent of rural households subscribe to broadband service, compared to 54 percent of urban dwellers.

Finally, only 40 percent of minority households subscribe to broadband, while 55 percent of non-Hispanic white households are connected.

“We need specialized policies and technologies that target those underserved regions” said Professor Rahul Tongia of Carnegie Mellon University. Tongia pointed to the need for changes in laws on “white spaces” and “open access” to get more people connected in regions that are still off the grid.

Broadband a ‘Civil Right’

Commissioner Michael Copps said he found it hard to believe that people were still arguing against a comprehensive broadband policy for universal and open access.

“I am unaware of any infrastructure build out in the history of this country that hasn’t been accomplished without a public or private sector partnership and a national strategy … to get broadband out to all of its people,” Copps said.

“I think it’s a civil right; I really do,” he said. “The need to chart a path to the realization of that right is why we’re here today.”

“And we’re still sitting here saying, ‘Should there be a strategy?’ ”

(Photo Courtesy of Jake Warga, Flickr)

David All, co-founder of the Republican activism site Slatecard.com, and Saulius “Saul” Anuzis, chairman of the Michigan Republican Party, are appealing to their party to support an open Internet.

In op-ed printed in the Capitol Hill newspaper Politico, the two suggested that the old models of fundraising and organizing are collapsing, and that Republicans should embrace an open Internet as a key political organizing tool. They write:

As Republicans, we must not only adopt the new techniques and structure of Internet democracy, but also understand the importance of preserving the open nature of the Net as a policy issue. The tools that are available at low cost to Republicans are only there because of an Internet ecosystem that has managed to remain open, despite the efforts of phone and cable companies.

Increasingly, anyone with a broadband connection can upload powerful, persuasive political videos on the Web, start their own Web sites supporting candidates, or contribute to campaign fundraising appeals online.

A recent report from the Pew Internet and American Life Project shows a record number of Americans use the Internet to get election campaign coverage. According to the report, 46 percent of Americans have used the Internet, e-mail or text messaging to obtain news about the 2008 presidential campaigns, share their views and organize.

If we fail to engage in this effort,” Anuzis and All warn, “the Internet service providers, who control the last mile of the tubes into a customer’s house or small business, will choke off the affordable tools available to conservative activists. They have already started exercising their market power to block applications that enable Internet users to distribute information across the Net.”

Additionally, they argue that Republicans should support widespread broadband deployment, as so many Americans are still without access to high-speed Internet.

“America’s rural voters are largely Republican,” they wrote. “Yet they face major challenges in gaining access to a broadband Internet connection. The latest U.S. Census data show that only 39 percent of rural households subscribe to broadband — and nearly 10 million rural households are in areas not served by any broadband provider.”

Come to think of it, those all sound like pretty good reasons for Democrats to support Net Neutrality and and open Internet, too.

Comcast can’t seem to get it straight.

On the one hand, the cable giant blocks access to certain Web applications. On the other, Comcast executives extol the virtues of a “free market” to safeguard against any abuse of users’ right to choose online.

So which is it?

What the cable giant really wants is to thwart any policies that would stop it from doing whatever it pleases. And at this moment the company wants to play gatekeeper — “managing” its network in a way that prevents users from gaining access to the Open Internet.

Of course, Comcast’s executives will never admit this. But their true intentions lurk in the fine print of statements and filings they have made at the Federal Communications Commission over the years.

These filings reveal a familiar pattern. The company uses free-market rhetoric and pledges of good corporate citizenship to exact favorable rule changes from the federal agency. Once those rulings are in place, it does an about face — breaking promises and creeping further towards throttling our Web experience and dominating the access market.

As the FCC weighs how to sanction the company for blocking access to applications like BitTorrent, it’s worth looking into Comcast’s Washington history of bait and switch.

A little digging through FCC’s archives tells the tale.

Exhibit A: Open Access

Back in early 2002 Comcast was engaged in the debate over whether cable companies should share “their pipes” with competing Internet service providers. Such “open access” requirements were the law during the age of dial-up Internet, resulting in dozens of competing ISPs delivering services via a single phone line into the home.

Casserly: Friend to Open Access?

Comcast was set against open access rules being extended to cable Internet and deployed legions of lobbyists in Washington to fight the notion. But when they worried their purchase of (the old) AT&T’s broadband service might be derailed, they pledged to offer open access to competing services.

In an “ex parte” letter filed at the Commission in February of that year, Comcast’s attorney James L. Casserly touted this promise as:

Concrete evidence of Comcast’s intention to afford high-speed Internet customers a choice of ISPs and of the ability of industry participants to make the necessary arrangements through voluntary, commercial negotiations.

In a subsequent filing Comcast promised that the merged entity “will have a significant incentive to continue to work with independent ISPs.” And in another filing still, the company pledged: “Comcast is committed to negotiating mutually beneficial commercial arrangements with independent ISPs.”

Comcast coupled these filings with press releases heralding the company’s partnership with independent ISPs like NetZero, Juno and Earthlink (remember them?) as a sign of their commitment to open access.

Comcast Changes its Tune

So what happened? Based upon Comcast’s promises of good behavior, the Commission exempted cable companies from open access rules – opening the door to the court decision and subsequent FCC rulings that put Net Neutrality in jeopardy.

Waz: The Old Bait and Switch

On the heels of the FCC decision against open access, Comcast did a 180. In October 2003, the Washington Post reported that “Comcast officials say they are no longer so keen on the idea” of agreeing to provide access to other services. Joe Waz, a Comcast vice president, added: “If you don’t need ISPs for basic connectivity to the Internet, what value do they bring to our customers?”

In other words, as soon as Comcast execs got what they wanted from the FCC, the promises to share their wires at a fair price were forgotten. The press releases touting their deals with competing provider weren’t worth the paper on which they were written.

The end result is that, today, a Comcast customer has no other choice but Comcast for Internet service via their exclusive cable connection. They’re stuck with one option, and the “free market” – little more than a chimera in America’s high speed Internet world — had nothing to do with it.

Exhibit B: The Open Internet

Fast forward to 2008. Comcast is now making promises to work with competing video and Internet telephony services and stop blocking popular file-sharing applications. They insist there’s no need for FCC oversight to protect our right to use services of our choice every time we connect to the Web.

Cohen: Free Market Wise Guy

Washington should “rely on the marketplace rather than government regulation to advance the provision of Internet services,” wrote Comcast Executive Vice President David Cohen in a March filing with the agency. Cohen points to a press release — issued jointly by BitTorrent, Inc. and Comcast — as evidence of the “fundamental wisdom of this approach.”

In a July filing with the Commission, Vice President Kathryn Zachem pledges Comcast’s commitment “to provide network management solutions that benefit consumers and competition.”

If past is prologue, why should we expect things to be any different?

Trust the Profit Motive Only

The Comcast message, in case you’ve missed it, sounds like this: “With the free market, we can solve our own problems and deliver to end users the Internet experience that they desire. Trust us.”

“A company has a nature,” Professor Larry Lessig said earlier this year. “Its nature is to produce economic values and wealth for its shareholders.” That one essential truth is about as much trust that we need to extend to corporations, Lessig adds.

Public policy, on the other hand, is designed to make it profitable for corporations to behave in ways that serve the public interest.

With Chairman Martin’s latest move to hold the cable company accountable, it seems some at the federal agency have learned this valuable lesson.

Federal Communications Commission Chairman Kevin Martin is taking action against Comcast for illegally violating Net Neutrality, after a coalition of Net users and activists caught the cable giant blocking open access to the Internet.

Martin told the Associated Press last night that Comcast had “arbitrarily” blocked Internet access and failed to disclose to consumers what it was doing. “We found that Comcast’s actions in this instance violated our principles.”

The move is the agency’s response to a complaint filed by Free Press and members of SavetheInternet.com, which called for severe action against Comcast for jamming people using popular “file-sharing” applications. But the story goes back further than that.

Organized People Beat Organized Money

Martin’s action — to be voted on by the full FCC in three weeks – would be a major milestone for the growing open Internet movement, marking another defeat of entrenched corporate interests in Washington and a stunning victory for ordinary people who want to control their Internet experience.

If adopted by the FCC, Martin’s order could set an historic precedent for protecting the future of the open Internet. Against every ounce of conventional wisdom in Washington, everyday citizens and consumer advocates have taken on a major corporation and won a major victory.

The decision follows nearly a year of organizing and action by a growing alliance of bloggers, Internet innovators, consumer groups, organizations from across the political spectrum, and Net activists from all walks of life.

In that time, tens of thousands of people wrote the FCC in support of Net Neutrality after Free Press filed its complaint against Comcast and asked the agency to levy the largest fine in its history.

Hundreds of others packed public hearings to speak out against would-be gatekeepers (even after Comcast notoriously attempted to keep them out by hiring drowsy seat warmers in Boston).

The Power of One

But it all started with one person. When barbershop quartet enthusiast Robb Topolski found Comcast was preventing him from sharing legal music files with other fans, he took to his computer and launched a one-man investigation.

Topolski uncovered conclusive evidence that Comcast was secretly blocking his uploads. His concerns echoed those of hundreds of other Comcast users, who had taken to the blogs and chat rooms to express their dismay.

He posted his findings on a single tech blog. This had a cascading effect, and soon dozens of others were writing about his findings. The Associated Press and the Electronic Frontier Foundation conducted their own investigations with similar results. The evidence was indisputable: Comcast was blocking the Internet.

The wheels of government started churning. This time for the better.

The Fight Continues

Martin’s move is a major victory. But this fight is far from over. His order has yet to pass, though it seems likely. The cable companies — and the phone companies, too, even though they’re trying to distance themselves from Comcast — will be back with their money, lawyers and phony grassroots groups to try to take control of the Internet and establish themselves as gatekeepers.

Companies like Comcast, AT&T and Verizon are spending hundreds of millions of dollars to lobby Washington to gut Net Neutrality and hand over control of the Internet to them. But they so far have failed to overcome widespread and organized public opposition.

Today we can celebrate a huge victory for real people, but we need to continue this fight to send a clear signal to the next Congress and White House that standing with regular people for a free and open Internet is a winning proposition.

Yesterday, 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.

Almost every great public initiative in America’s history, the electrification of rural communities, the creation of the interstate highway system or the 60s-era mission to the moon, started with a powerful vision and the political leadership to get it done.

We need both as we face a challenge to reawaken our democracy and drive economic growth in a world where America’s greatest commodity is its people.

This challenge, of course, is delivering high-speed Internet access to everyone.

And it’s no small lift as we have already dug ourselves a hole. Access to broadband today is held in the grip of the cable and phone cartel. This duopoly controls access for more than 98 percent of online American homes. And it’s the main reason why American pay far more for much slower speeds than what’s available in the rest of the developed world.

Sharing the Broadband Dividend

It has put us at a tremendous disadvantage - one that has been widely documented. But what’s alarming is new information about the demographics of access - the so-called “digital divide.” According to new analysis by Free Press, only 35 percent of U.S. homes with less than $50,000 in annual income have a high-speed Internet connection.

And the broadband dividend is not paying out equally. Only 40 percent of racial and ethnic minority households in the United States have access to broadband, while 55 percent of non-Hispanic white households are connected.

“The digital divide is alive and well,” Van Jones, the founder of Green For All, said during yesterday’s launch of InternetforEveryone.org - a new initiative to solve America’s gaping broadband access problems. “There’s a whole section of people who have not even caught up to where we are now and are in grave danger of being left behind.”

“As we create new entertainment and news for the Internet we want as large and diverse an audience as possible,” Said Michael Winship, president of the Writers Guild of America - East. “And the best way to do that is by supporting Internet freedom — access to high-speed Internet for everyone.”

Like Hot Water

“Why Internet for all? I think Internet access is required for full participation in society today. Maybe it’s not as basic as water, but it’s definitely as basic as hot water,” Robin Chase, the founder of Zipcar, said.

According to Chase, Internet access is fundamental to maintaining a high quality of life and for addressing such pressing social problems as America’s energy dependency.

“When you add the amount of money the average American spends on Internet bandwidth and their cell phones, it’s almost as much as Americans spend on energy, their cars and heating oil,” Columbia Law Professor Tim Wu said.

The oil problem has similarities to our bandwidth problem, Wu added. “Production is controlled by a tiny cartel that sets prices high and keeps them there. And so we have a similar economic and structural problem … and something needs to be done about it.”

Getting Beyond Rhetoric

Returning to the top of international rankings would translate into millions of new jobs and hundreds of billions of dollars in increased economic activity for the United States.

For good reason, other developed countries have enacted comprehensive national plans to connect more of their citizens to a fast, affordable and open Internet. The U.S. stands doesn’t have a plan or the leadership to get it done.

We do have national broadband rhetoric, though. In 2004, President Bush pledged “to have a universal, affordable access for broadband technology by the year 2007.”

As if on cue, last year, Mr. Bush’s chief Internet officer, John Kneuer, declared “mission accomplished” — that all the international surveys were misleading and that the “free market” had ensured that Americans across the country enjoy real choice in high-speed Internet access.

What he and his White House compatriots refuse to acknowledge, though, is that a free market approach for Internet services in the U.S. is a chimera. The only hand in play here belongs to the phone and cable duopoly and a government that’s been held in their thrall for too long.

The real solution is a little more nuanced.

Neanderthals and the Three Legged Stool

During the launch of InternetforEveryone.org, FCC Commissioner Jonathan Adelstein described himself as a “frustrated policymaker” in Washington. “At the FCC I have a stack of proposals on my desk about a national broadband policy,” he said. “What we’re lacking is the leadership to actually implement those policies.”

Adelstein looks at a successful broadband plan as a three-legged stool:

“You have businesses, who will invest and drive deployment, you have the government on all levels hopefully working in concert, and then you have the public both directly involved and through public interest groups like this coalition.”

“This is social infrastructure,” Professor Larry Lessig said:

“What’s bizarre about where we are in the history of building infrastructure is that this is the first time we have tried to undertake the building of fundamental social infrastructure against the background of a Neanderthal philosophy, which is that you don’t need government to do anything.

“That Neanderthal philosophy has governed for about the last eight years, and it has allowed us to slide from a leader in this field to an abysmal position. And it’s about time when people recognize that of course the private sector has a role, a central role, maybe the most important role, but it’s never enough.

Making it Happen

InternetforEveryone.org is bringing together public interest and for-profit institutions to raise public awareness of the digital divide and spark the political will to address this massive problem.

Closing the broadband digital divide should have been a real national priority for the past eight years. We can’t afford NOT to make it a priority for the next eight. While our status as world technology leader went into free fall, Congress sat on the sidelines and the White House ducked and dodged.

There’s a reason for that. Getting everyone connected is a political issue at its core. The policy process has been dominated thus far by the broadband incumbents and their well-heeled lobbyists. These companies prefer our lagging Internet status quo to public involvement, choice and real innovation.

And the community that uses the Internet is only now beginning to get organized to guide the debates that will shape its future. We clearly need to do more organizing with the tens of millions of people in communities that can’t access the Web.

Getting us back on top will require a national broadband framework that is supported by those beyond the Beltway - who stand to gain the most from a national broadband agenda that promotes access, choice, openness and innovation. And we need bold leadership willing to reject the conventional political wisdom and explore real solutions.

NPR’s Brian Lehrer today found that there is an issue in 2008, on which many from both the left and the right agree.

It happens about 23 minutes into an interview with Glenn Reynolds of right-leaning blog Instapundit.com and Adam Green of the progressive MoveOn.org Civic Action.

Lehrer had focused the topic on the Internet and presidential campaigns, but the conversation soon turned to Net Neutrality and its impact on what Green called “people-powered” Internet and “people-powered” politics.

MoveOn’s Green said that YouTube and online video are “revolutionizing the way that everyday people can put together political messages and spread them rapidly.”

Net Neutrality is central to this revolution, Green added, calling it an issue that “more enlightened people on both the left and right support.”

Lehrer asked Instapundit blogger-in-chief Reynolds to verify that. Said Reynolds:

“A lot of people on the right who don’t favor Net Neutrality, or are skeptical of it, are worried that it’s going to lead to regulating Internet providers as common carriers the way that you regulate the telephone companies and that that’s a bad idea.

“I understand the point but the fact is that most of them are common carriers, the telephone company that provides my DSL certainly are already. And the genius of the Internet has been that it is a level playing field. When you go to visit my site, when you go to visit the New York Times site, when you go to visit MoveOn.org or whatever, they’re sort of all out there in the same place and you can seemlessly go from one to another and that really does elevate the little guy.

“And the concern, which I think is completely legitimate, is that if big sites can engage in what’s basically payola for better treatement people will start visiting them more because they load faster and start paying less attention to troublesome little guys such as myself because our sites don’t load as well, don’t display as well, and don’t play on the same field.”

Lehrer was surprised by the “loaded” reference to payola, describing the negative impact radio payola has had on his industry. “The old payola scandals were when record companies would pay radio stations bribes in effect to give their records more airplay rather than just going on what was popular,” he said. Lehrer asked Reynolds whether he truly meant to draw such a parallel.

“I was very consciously drawing that analogy, yes,” Reynolds responded.