• by Wendy Davis , Staff Writer @wendyndavis, July 11, 2008

FCC Chain Kevin Martin hasn't made a secret of his feelings that Comcast shouldn't have interfered with peer-to-peer traffic. He has repeatedly criticized the cable company for failing to disclose its practices and, when Comcast said it would move to a protocol-agnostic management system, he responded that he was pleased Comcast had "reversed course and agreed that it is not a reasonable network management practice to arbitrarily block certain applications on its network."

Now, Martin says he will recommend ruling against Comcast when the FCC holds a public meeting on Aug. 1. With the two Democratic commissioners on record as net neutrality proponents, it's almost certain that the majority vote will go against Comcast.

Reportedly, Martin is stopping short of recommending a fine for the company. Instead, he favors an order directing Comcast to refrain from discriminating against particular types of Web traffic. He also wants Comcast to disclose its traffic management practices to customers.

Digital rights advocates largely cheered news of Martin's decision. Advocates have been pushing hard for an anti-Comcast ruling, saying that ISPs shouldn't be able to pick and choose what content goes through any more than telephone carriers can decide to censor particular phone calls.

Comcast takes the position that the FCC has no power to enforce net neutrality principles, because there are no laws or official regulations currently mandating net neutrality. The company also says its management practices are reasonable and that traffic was only delayed, not permanently blocked.

But despite all of the FCC activity surrounding this issue, whether the agency actually has the authority to order ISPs to treat all lawful applications and content equally is the subject of considerable debate. While it's clear that the FCC had this power before 2005, a U.S. Supreme Court ruling that year muddied the waters. The FCC issued a policy statement in September of 2005, but Comcast argues that a policy statement doesn't have the force of law.

Federal lawmakers have proposed legislating mandating net neutrality, but so far those efforts have been unsuccessful. Martin, meanwhile, has gone on record as saying that no new laws are needed because he believes the FCC has all the authority it needs. With today's news, Martin is again committing himself to the position that the FCC can order companies to follow neutrality rules. But, ultimately, whether such rules are legitimate is something that will likely be determined in court.