• by Wendy Davis  @wendyndavis, October 6, 2009

A group of leading academics have asked an appellate court to uphold the Federal Communications Commission's decision to sanction Comcast for violating net neutrality principles by interfering with peer-to-peer traffic.

A ruling in favor of Comcast could "pose significant threats to the Internet as we have always known it," five law professors argue in a brief filed this week with the U.S. Court of Appeals for the D.C. Circuit. Signatories include Stanford Law professor Lawrence Lessig, and Columbia Law's Tim Wu, who is credited with coining the term "net neutrality."

Comcast is currently appealing the FCC's decision to sanction the company for violating a 2005 Internet policy statement by interfering with high-bandwidth peer-to-peer traffic. The policy statement provides that networks should treat all lawful applications equally and that consumers should have access to all lawful content of their choice.

The commission didn't fine Comcast, but ordered it to stop throttling peer-to-peer traffic. As a practical matter, the order had little effect on Comcast, because the company had already committed to shifting to a protocol-agnostic traffic management system.

Still, Comcast is appealing the order on the grounds that the FCC had no authority to sanction the company for violating net neutrality principles that had never been codified.

The legal scholars' sweeping legal papers argue that reversing the FCC's ruling "would reduce the Internet's ability to serve as an open platform for innovation, economic growth, and democratic discourse."

They say that a decision to reverse the Comcast ruling would allow Internet service providers to treat different applications differently, which could ultimately discourage people from creating new programs and services. "Practices such as Comcast's -- which could be widely adopted and expanded if the court vacates the [FCC's] order -- would threaten application innovation by raising its costs," they argue. "By singling out -- and secretly discriminating against -- individual applications, these practices will introduce significant new uncertainties that will harm application developers and make it more difficult for them to obtain funding."

The advocacy groups Public Knowledge, Free Press, Open Internet Coalition and the online video company Vuze also filed papers this week arguing that the appellate court should uphold the FCC's ruling.

Separately, Congress is considering new net neutrality legislation and FCC chair Julius Genachowski has proposed that the agency craft new regulations.

In recent days, an increasing number of Republican lawmakers have weighed in against Genachowski's proposal. Earlier this week, Rep. Cliff Stearns (R-Fla.) and 19 other Republicans in the House sent a letter to Genachowski asking him to delay any new regulations until after the FCC completes an assessment of the current broadband market. The letter argues that net neutrality rules would "make it harder, not easier" for companies to invest in broadband. Last week, Reps. John Boehner (R-Ohio) and Eric Cantor (R-Va.) made a similar argument in a letter to President Barack Obama.