• by Wendy Davis  @wendyndavis, February 15, 2008

For the last three months, Comcast has defended itself against accusations that it wrongly impeded traffic to peer-to-peer sites by saying it was only managing its network and wasn't discriminating against particular types of content or users. But this week, for the first time, the company also raised a new argument--that the Federal Communications Commission has no authority to enforce net neutrality principles.

At least one former FCC Commissioner says this position might carry the day for Comcast. "There's some rational basis for Comcast's argument," said Nicholas Thompson, now a visiting law professor at the University of Iowa. "They might actually be able to prevail on that."

Near the end of its written comments, Comcast asserts that the FCC's Internet policy statement, in which it endorses net neutrality in general, "was not published in the Federal Register and is not contained in the Code of Federal Regulations," and therefore does not have "binding legal effect."

If the FCC accepts this latest contention, it might not be able to take action against Comcast, regardless of whether the company degraded service to peer-to-peer sites in order to discriminate against potential competitors. The FCC is currently considering a petition against Comcast filed by a coalition of net neutrality advocates who are asking for an injunction banning the company from interfering with traffic to peer-to-peer sites.

But even if the FCC doesn't now have the authority to act against Comcast, the agency could change that state of affairs by publishing the rules and following the technical procedures necessary to turn them into regulations, Thompson said. Such regulations might not apply retroactively, but would still apply to Comcast and other companies in the future.

Net neutrality advocate Gigi Sohn, president of Public Knowledge, said she was unimpressed with Comcast's argument, which appears to be at odds with prior comments by critics of net neutrality laws. "In the many times I have debated the carriers, they have said that the FCC has the power," she said.

In 2005, the FCC fined broadband provider Madison River Communications $15,000 for having allegedly blocked Vonage's Voice over Internet Protocol service to some consumers. But that settlement occurred before the U.S. Supreme Court threw net neutrality laws into flux by allowing the FCC to classify broadband as an "information service," which isn't subject to common carrier anti-discrimination rules.