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October 2008 | Volume 11 / Number 10
Regulation Watch

Another Brick in the Wall: The Impact of the FCC's Comcast Net Neutrality Decision

On August 20th, 2008 the FCC (News - Alert) released its order partially granting a complaint against Comcast for “secretly degrading peer-to-peer applications”. The FCC found that Comcast had engaged in “unreasonable network management practices”, by interrupting some peer-to-peer connections over its Internet access facilities. The Order applies only to Comcast (News - Alert) and Comcast’s network management practices but the FCC indicated it has the authority to look at other behavior on a case-by-case basis.

The Commission found that Comcast blocked and degraded the Internet service of customers using peer-to-peer programs, that its actions did not constitute reasonable network management. The Commission observed that Comcast could have elected several alternative non-discriminatory network management practices, or Comcast can work with the application vendors themselves.

In reaching this conclusion, the Commission determined that it had authority to enforce the Internet Policy Statement primarily under Sections 1 and 230 of the Communications Act. However, the Commission also relied on five other sections of the Act. The Commission made clear that it has the authority to address this and other similar complaints through an adjudicative process rather than a generally applicable rulemaking proceeding. The Commission highlighted that the order does not address whether prioritizing packets associated with either affiliated or third-party content, or other network management practices, would similarly violate the Commission’s Internet Policy Statement.

The Order requires Comcast, among other things, to submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year.

Whatever Comcast decides, expect network neutrality issues to remain actively discussed within Congress and the telecommunications industry.

William B (News - Alert). Wilhelm is a partner in the law firm of Bingham McCutchen LLP. For more information please visit them online at The preceding represents the views of the author and does not necessarily represent the views of Bingham McCutchen LLP or its clients.

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