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Boehner blasts FCC over Comcast boner (Updated 8/1) - July 31, 2008

On the eve of the FCC's scheduled vote to sanction Comcast over its throttling of BitTorrent traffic, House Minority Leader John Boehner (R-Ohio) has sent a letter to commission chairman Kevin Martin blasting the agency's decision. "I am dismayed by recent press reports that you intend to interfere with the network management decisions of broadband providers, essentially regulating the Internet," the congressman wrote. "As one of your Republican colleagues at the FCC, Commissioner McDowell, so aptly explained in his July 28 Washington Post editorial, '[t]he Internet has flourished because it ahs operated under the principle that engineers, not politicians or bureaucrats, should solve engineering problems.'"

The letter also questions the FCC's legal grounds for taking action against Comcast. "It appears you are wading into the debate on very shaky procedural and legal grounds," Boehner wrote. "While the FCC has endorsed certain Internet policy principles, it has never adopted regulations through a proper notice and comment rulemaking. Nor should it, for the reasons I outline above."

The letter urges the commission to "return to a sound market-oriented approach, rather than continue down the path you have chosen."

Whether Boehner's letter will have any impact on the vote scheduled for Friday was not immediately clear. Martin is expected to be joined by the two Democrats on the commission, Michael Copps and Jonathan Adelstein, in voting to sanction Comcast, although how far the FCC's order will actually go is also not clear. Martin has said the commission will not impose a fine on the company, in part because of the ruling's sketchy legal foundation. Congress is also scheduled to go into recess after Friday for the rest of the summer, making it unclear whether Boehner would or could do anything more than send the letter should Martin defy him.

Somewhat more clear is that the Republican Chairman Martin is now at great risk of losing his support among Republicans on Capitol Hill. It also appears that network neutrality is destined to become a partisan political issue in a highly political year.

Martin did find new allies (of sorts) however, among Comcast's critics. "It is a shame that the harm Comcast has done to the Internet has not been appreciated by Leader Boehner," Public Knowledge president Gigi Sohn said in a statement. "Rather than criticizing FCC Chairman Kevin Martin, Leader Boehner should praise him for putting a stop to a practice that technical experts have said is clearly outside the bounds of accepted Internet practice, while at the same time the FCC is acting to protect consumers."

The FCC's meeting is scheduled for 10:00am Friday. A live webcast will be available here.

UPDATE (8/1): As expected, the FCC voted 3-2 Friday to enforce its network neutrality principles against Comcast, finding the Comcast's practice of throttling BitTorrent traffic to relieve congestion on its network was not a "reasonable network management" practice. The commission did not impose a fine.

Full details of the order have not yet been released. A summary released Friday by the commission says:

The Commission announced its intention to exercise its authority to oversee federal Internet policy in adjudicating this and other disputes regarding discriminatory network management practices with dispatch, and its commitment in retaining jurisdiction over this matter to ensure compliance with a proscribed plan to bring Comcast's discriminatory conduct to an end.

Under the plan, within 30 days of release of the Order Comcast must:
* Disclose the details of its discriminatory network management practices to the Commission
* Submit a compliance plan describing how it intends to stop these discriminatory management practices by the end of the year
* Disclose to customers and the Commission the network management practices that will replace current practices

To the extent that Comcast fails to comply with the steps set forth in the Order, interim injunctive relief automatically will take effect requiring Comcast to suspend its discriminatory network management practices and the matter will be set for hearing.

Comcast issued a statement saying, "the commission's order raises significant due process concerns and a variety of substantive legal questions. We are considering all our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays."
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