• by Wendy Davis  @wendyndavis, July 8, 2008

A federal judge in California has suspended proceedings in a subscriber's lawsuit against Comcast while the Federal Communications Commission completes its investigation into whether the company violated net neutrality principles by slowing traffic to peer-to-peer sites.

U.S. Judge Phyllis Hamilton stayed the case on the grounds that the FCC was already considering petitions against Comcast filed by online video company Vuze, as well as net neutrality advocates Free Press and Public Knowledge.

"The FCC is already using its recognized expertise to consider some of the exact questions placed before the court here, in an effort to promote uniformity in internet broadband regulation," Hamilton wrote in a ruling quietly issued late last month.

In the ruling, Hamilton said the FCC has "well-established" authority to regulate broadband companies' services. "The reasonableness of a broadband provider's network management practices has ... been firmly placed within the jurisdiction of the Federal Communications Commission," she wrote.

Last year, an investigation by The Associated Press revealed that Comcast was slowing traffic to peer-to-peer sites. The report triggered complaints to the FCC that Comcast was violating 2005 net neutrality principles, as well as a putative class-action lawsuit by California resident Jon Hart. He alleged that Comcast mislead him about the speed of his broadband experience and accused the company of breach of contract and false advertising, among other charges.

Comcast asked that Hart's lawsuit be stayed so that the FCC could finish its probe. In its motion, Comcast argued that regulation is "unnecessary and unwarranted," but also specifically said the FCC has authority over the matter. "Any inquiry into whether Comcast's P2P management is unlawful falls squarely within the FCC's subject matter jurisdiction," the company stated in its brief.

But with that assertion, Comcast appears to undercut a major portion of its argument to the FCC -- that the agency lacks authority to enforce net neutrality principles.

Some net neutrality advocates are already pointing out the discrepancy. "Clearly they're talking out of both sides of their mouth," said Gigi Sohn, president and co-founder of Public Knowledge.

A Comcast spokesperson denied there was any contradiction "What we have argued in the Hart case is that the FCC believes it has jurisdiction here, and the court should wait to see what action the FCC takes," the spokesperson said. The spokesperson declined to elaborate further on statements in Comcast's brief or the court's ruling.

Sohn added that the California judge's decision lends support to the neutrality advocates' argument that the FCC has the authority to decide whether Comcast unlawfully managed traffic. At the same time, federal judges in Washington, who would decide any appeal of the FCC's actions, won't necessarily come to the same conclusion as a federal judge in California.

FCC Chair Kevin Martin has said he believes that the agency has the power to take action against Comcast. Martin testified at the Senate in April that no new net neutrality was are needed because the FCC already has authority to regulate broadband services.

Earlier this year, Comcast said it will develop a protocol-neutral method of managing traffic.