"The FCC has general jurisdiction over all interstate communications by radio and by wire, which includes Comcast's cable modem service," the agency argued in papers filed this week with the U.S. Court of Appeals for the D.C. Circuit. Therefore, the FCC says, it was entitled to sanction Comcast even in the absence of a specific law or regulation banning the company from degrading peer-to-peer traffic.

Comcast has appealed the FCC's decision on the ground that the agency lacked authority to sanction it for violating principles that aren't enshrined in regulations.

The agency counters that it has the power to create policy through adjudications, such as the Comcast proceeding. The agency also argues its 2005 Internet policy statement -- which said that customers are entitled to access all lawful content and applications -- served to put Comcast on notice that it shouldn't tinker with traffic.

It's not clear how the court will rule, but Chairman Julius Genachowski's recent call to codify the 2005 principles might have given Comcast some extra ammunition. The two Republican FCC members said this week that Genachowski's public plea for new neutrality regulations calls into question whether the agency really did have the ability to sanction Comcast.

At the same time, if Congress enacts new neutrality legislation, the outcome of this appeal might not be all that significant in the long-run. In fact, an appellate ruling in Comcast's favor could ultimately lend momentum to an effort for new open Internet laws.

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