Rich Fiscus
9 Jul 2008 15:59
Since last year's revelation that Comcast was indeed throttling BitTorrent traffic from customers of their broadband internet service it brought them to the attention of the FCC, where they're already vigorously defending themselves. They've cited a lack of specific rules outlawing their "network management" techniques as proof they've done nothing wrong. They're also being sued in California, where a judge has granted them a stay, pending the FCC's decision.
The California lawsuit does make claims of illegal interference with network traffic, but it also alleges false advertising. The plaintiffs claim that Comcast is advertising more than they're actually delivering when it comes to high speed internet service. The judge has indicated that only the FCC has jurisdiction over traffic management, agreeing with an argument made by Comcast attorneys who wrote the following.
"Because these issues are within the subject matter jurisdiction of the FCC, and because the FCC is actively investigating them, this Court should stay its hand under the primary jurisdiction doctrine."
Here's where things get complicated. Even though the FCC doesn't have jurisdiction over false advertising claims the judge is waiting to issue a decision on thiem until the FCC investigation is concluded. He writes that they're "sufficiently interrelated with the network management issue such that it cannot be said that the FCC’s consideration and determination of the network management issue will have no impact on resolution of these claims."
Although there's been some noise around the internet about how this is a reversal of Comcast's earlier position in an FCC filing, it's actually not. In fact they've always acknowledged the FCC's authority to regulate network management practices. And of course Comcast representatives have been quick to point this out, but they conveniently dodge the issue of false advertising.
It's perfectly legal to sell a car that's limited to a top speed of 60 miles per hour. That doesn't mean you can claim it will keep up with a Ferrari.