• by Wendy Davis , Staff Writer @wendyndavis, February 26, 2008

Net neutrality advocates are cheering remarks Federal Communications Commission members made Monday at a hearing at Harvard Law School.

FCC chair Kevin Martin in particular offered some strong rhetoric in favor of net neutrality at the conference, convened in response to complaints filed with the FCC against Comcast for slowing traffic to peer-to-peer sites.

He said early in the day that the commission was "ready, willing and able to step in if necessary," if Internet service providers were unlawfully preventing consumers from using the Web. But, despite the optimism of some net neutrality supporters, those remarks seemed more like a rebuke to Comcast for its stance that the FCC can't regulate net neutrality than an indication that Martin was prepared to order it to stop impeding with traffic.

Comcast in its response to the FCC argued that the agency doesn't have the legal authority to enforce a 2005 policy statement endorsing net neutrality in principle. In its papers, Comcast argued that it's not obliged to comply with the policy statement because the FCC didn't take the steps necessary to make it a regulation.

This argument didn't seem to go over well Monday. The most pointed exchange of Monday's hearing came midway through the day, when Martin asked Comcast executive vice president David Cohen about this contention.

Martin told Cohen that one of the reasons he has spoken out against new legislation is because the FCC currently has the power to enforce neutrality principles, and then asked him point blank whether Comcast disputes that.

"We don't think Comcast has the authority to enforce principles that it has adopted with the explicit statement that they are not enforceable principles," was Cohen's first attempt at a response.

Martin rephrased the question, asking him again whether Comcast believes the FCC has the authority to order a halt to impeding traffic or imposing a fine, to which Cohen responded he would "stand by our filing in this ... which spends 10% of its time noting that the Commission does not have the authority to impose a forfeiture fine." Martin tried once more, this time just asking whether Comcast believes the FCC can order it to stop slowing down traffic to peer-to-peer sites.

Cohen's response: "I'm not 100% sure. I'll get back to you."

Realistically, Cohen couldn't very well contradict his company's written filings on the matter, but clearly he was in no hurry to argue to Martin's face that he lacked the power to issue a ruling.

Regardless of that spat, however, the commissioners seemed more comfortable with the prospect of telling Comcast and other companies to better disclose their practices than with regulating those practices.

Martin early in the day announced that reasonable network management should be transparent to consumers -- which was also his most definitive statement of the day. "They must be conducted in an open and transparent way," Martin said of traffic management practices.

In that regard, the FCC might be mulling whether to follow the path set by the Federal Trade Commission on behavioral targeting. After two days of town hall meetings last November, the FTC issued proposed voluntary guidelines that suggest that companies should do more to notify consumers about their data collection practices, but that don't otherwise curb those practices.