FCC probably can't police Comcast's BitTorrent throttling

[Jim]

Federal regulators are planning to meet on Friday and declare that Comcast violated Net neutrality principles when throttling BitTorrent traffic on its network. This would become the U.S. government's first Net neutrality-related ruling.

There's just one problem with the Federal Communications Commission's plans: They may not be quite, well, legal. In other words, the FCC may not actually have the authority to make its ruling stick.

In 2006, Congress rejected five different bills, backed by groups including Google, Amazon.com, Free Press, and Public Knowledge, that would have handed the FCC the power to police Net neutrality violations. Even though the Democrats have enjoyed a majority on Capitol Hill since last year, their leadership has shown zero interest in resuscitating those proposals.

It's true that the FCC adopted a set of principles in August 2005 saying "consumers are entitled to run applications and use services of their choice." But the principles also permit providers' "reasonable network management" and, confusingly, the FCC admitted on the day of their adoption that the guidelines "are not enforceable."

Friday's scheduled vote at the FCC stems from a request submitted in November by Free Press and its political allies, including some Yale, Harvard, and Stanford University law school faculty. They claim the FCC has the authority--under existing law--to "impose additional regulations" declaring Comcast's throttling to be illegal.

"Should Comcast finally be held accountable for its illegal practices, it will be the direct result of historic public involvement in this precedent-setting debate," said Marvin Ammori, general counsel of Free Press, which is funded in part by George Soros' Open Society Institute. "We look forward to seeing the order, and commend the FCC for conducting such a thorough investigation on behalf of Internet users everywhere."

FCC Chairman Kevin Martin, a Republican and occasionally the swing vote at the commission, is reported to be in favor of ruling against Comcast. It's no stretch to say the FCC's two Democrats, Michael Copps and Jonathan Adelstein, will join him. That leaves the remaining two Republican commissioners dissenting; commissioner Robert McDowell wrote an op-ed article published in the Washington Post on Monday that the Internet would "die of clogged arteries if network owners had to seek government permission before serving their customers by managing surges of information flow."

[url=\"http://news.cnet.com/8301-13578_3-10000821-38.html\"]Full Article[/url]