• by Wendy Davis , Staff Writer @wendyndavis, June 18, 2008

AT&T and Verizon are publicly calling on the FCC to take action against fellow Internet service company Comcast, according to news reports.

"It's in the best interest of the industry for the FCC to make a judgment against Comcast in the BitTorrent case," said Tom Tauke, executive vice president of public affairs and policy for Verizon, according to CNet. Jim Cicconi, senior executive and vice president for legislative affairs for AT&T, agreed with Tauke, CNet reports.

Both executives made the comments at the NxtComm conference in Las Vegas this week. (A Verizon spokesperson told MediaPost today that Tauke was only calling on the FCC to clarify its position on network management. The spokesperson did not respond to specific questions about Tauke's quote.)*

The remarks come as the FCC is investigating complaints that Comcast violated net neutrality principles by slowing down some traffic to peer-to-peer sites in order to manage congestion on its network. Traffic shaping that relies on discriminating against particular types of protocols potentially violates a 2005 policy statement by the FCC, which holds that consumers are entitled to access any lawful applications. While the 2005 statement contains an exception for reasonable network management techniques, the FCC has not yet clarified what constitutes reasonable management.

Comcast has said it will develop a protocol-agnostic method of managing traffic, but also argues that the FCC has no authority to impose a fine or order a halt to traffic-throttling because its policy statement isn't a law or a regulation.

But Comcast should be careful what it wishes for here. Its stance might result in a short-term gain -- dismissal of the complaints -- but is also potentially damaging politically: One of the most popular arguments against new net neutrality legislation is that such laws would be superfluous because the FCC already has the authority to enforce non-discrimination principles.

Chair Kevin Martin in April told the Senate that the FCC can issue orders about net neutrality because the agency is broadly tasked with protecting broadband Web access.

Ultimately, however, it will be up to the courts to decide whether the FCC is empowered to enforce neutrality principles. And should the courts decide that question in Comcast's favor, it will be very difficult for anti-legislation forces to argue there's no need for new laws.

* After this column was published, CNet updated its story and corrected Taube's quote to, "It's in the best interest of the industry for the FCC to make a judgment on the Comcast/BitTorrent case."