• by Wendy Davis , Staff Writer @wendyndavis, December 3, 2009

Comcast's announcement this morning that it had agreed to purchase a majority stake in NBC is already raising the hackles of net neutrality advocates.

Rep. Ed Markey (D-Mass.), who recently introduced a bill to enshrine neutrality principles, sounded an alarm within hours of Comcast's official statement. "I want to ensure that the combination of a major network operator and a large content owner does not open the door to discrimination on the Internet to the detriment of users," he said in a statement.

The concern is that Comcast could use its status as the country's largest Internet service provider to privilege its own online content, says Marvin Ammori, a University of Nebraska law school professor who advises Free Press. For example, Comcast could theoretically prioritize traffic to NBC.com at the expense of visits to other sites.

"This is yet another example of why we need a very firm and very strong net neutrality rule," Ammori says.

For its part, Comcast takes the position that it adheres to the FCC's 2005 Internet policy statement and will continue to do so. Comcast also points out that the FCC might enact neutrality regulations before the NBC deal closes.

But that stance doesn't alleviate advocates' concerns. For one thing, there's no guarantee that the FCC will enact neutrality regulations, or that the courts will uphold any new rules.

Additionally, there's room to interpret the FCC's 2005 principles. The policy says that consumers are entitled to access all lawful content of their choice, but it's debatable whether an ISP would violate that principle by prioritizing a particular company's Web traffic.

What's more, the policy statement won't necessarily hold up in court. Comcast has already appealed the FCC's decision to sanction the company for violating that policy statement by blocking peer-to-peer traffic. The appellate court could well decide that the FCC shouldn't have attempted to enforce principles that hadn't been codified as regulations. The court could go even further and rule that the FCC has no jurisdiction over Web traffic -- which would effectively scuttle the agency's current attempt to enact rules.