• by Wendy Davis , Staff Writer @wendyndavis, April 23, 2008

FCC Chair Kevin Martin is making it increasingly clear that he's not happy with Comcast's interference with Web traffic.

For months now, Martin has been on record condemning Comcast's decision to slow traffic to peer-to-peer sites without first telling consumers it would do so. This week, he told the Senate that the agency had concerns. "Contrary to some claims, it does not appear that cable modem subscribers had the ability to do anything they wanted on the Internet," he testified. "Some users were not able to upload anything they wanted and were unable to fully use certain file sharing software from peer-to-peer networks."

Martin said the FCC is still investigating pending complaints, but left little doubt that he would favor some sort of action against Comcast, if the company violated the FCC's 2005 net neutrality principles.

Comcast said last month it would stop throttling traffic to peer-to-peer sites by the end of the year, but Martin remains skeptical. "It is not clear when they will actually stop using their current approach," he testified. "They claim that they will deploy this new solution by the end of the year but it is unclear whether they will be finished deploying their solution or just starting that migration. Indeed the question is not when they will begin using a new approach but if and when they are committing to stop using the old one."

Martin this week repeated his assertions that the FCC has the authority to deal with Comcast without any new laws. But Comcast takes the opposite position, arguing that the FCC isn't legally entitled to enforce net neutrality principles.

Given Comcast's interpretation, any action the FCC takes may well lead to litigation, with the cable company arguing in court that the agency had no grounds to issue any orders against it.

Martin apparently isn't scared of a lawsuit. But that's not an argument against passing new laws. If new legislation would clarify that the FCC is indeed entitled to act against Internet service providers that violate net neutrality, it's hard to see why the agency continues to oppose it.