• by Wendy Davis  @wendyndavis, June 16, 2008

With Comcast continuing to argue that the Federal Communications Commission has no authority to enforce net neutrality principles, advocacy group Free Press is making another push to persuade the agency to take action.

"Comcast is not above the law," Free Press stated in a 112-page submission to the FCC late last week. The net neutrality organization contends that the FCC is authorized to fine Comcast or enjoin it from violating net neutrality principles. "If the Commission lacked jurisdiction over Internet access ... the Commission would lack jurisdiction over the most important communications medium of our time."

A Comcast spokesperson said the company is still studying the lengthy filing.

Last year, an investigation by The Associated Press revealed that Comcast was interfering with some visits to peer-to-peer sites. Comcast said it only did so to manage the flow of traffic on its network.

Advocacy groups complained to the FCC, as did online video company Vuze, arguing that Comcast's traffic-shaping violates a policy statement the FCC issued in 2005. At the time, the agency endorsed net neutrality in principle, but said companies could still take reasonable measures to manage traffic.

The cable company recently said it will develop a protocol-neutral method of managing traffic, but meanwhile has raised the technical legal argument that FCC cannot enforce its 2005 policy statement, which is neither a law or a regulation.

That argument threatens to take the matter out of the FCC's hands. But it also could be explosive politically, because opponents of net neutrality laws have argued that no new legislation is necessary because the FCC already has the authority to enforce the concept.

FCC Chair Kevin Martin himself has made that argument. When testifying before the Senate earlier this year, Martin said the agency has the power to take action to ensure that Internet access companies are not discriminating against particular types of protocols or applications.