• by Wendy Davis  @wendyndavis, August 1, 2008

The top House Republican Thursday criticized Federal Communications Commission chair Kevin Martin for the agency's expected ruling sanctioning Comcast for interfering with peer-to-peer traffic.

Calling the anticipated ruling "heavy-handed," Rep. John Boehner (R-Ohio) warned in a letter to Martin that the FCC risks stifling one of the "greatest technological and economic success stories our nation has seen." The lawmaker also accused Martin of interfering with the "market-based, self-governing nature of the Internet that is the key to its success."

The FCC is expected to rule today that Comcast's decision to manage congestion on its network by slowing down peer-to-peer traffic violated the principle that network managers treat all traffic equally. Martin has drafted a ruling stating that Comcast's practices were unlawful, but does not support fining the company. The FCC's two Democrats are expected to vote with Martin.

While there is no federal law specifically mandating net neutrality, the FCC issued a statement three years ago endorsing neutrality principles. But Comcast argues that the FCC has no jurisdiction to sanction the company on the theory that this policy statement is not legally enforceable.

In his letter to Martin, Boehner agrees with Comcast on that point. "While the FCC has endorsed certain Internet policy principles, it has never adopted regulations," he wrote. "Nonetheless, your continued pursuit of this matter suggests that you are making not only a poor policy judgment, but a poor legal one, as well."

While Comcast admits it occasionally slowed some peer-to-peer visits, the company said it only did so to manage traffic on its network. Comcast also said earlier this year that it will develop a protocol-agnostic approach to easing congestion.

Net neutrality advocates Public Knowledge--one of the organizations that filed a complaint with the FCC about Comcast--issued a response to Boehner's letter. "The FCC's action is in no way 'heavy-handed,'" Public Knowledge president and co-founder Gigi Sohn said in a statement. "It is, rather, a return to the principles of open competition and non-discrimination that have been a part of communications law in this country for more than 70 years."