Comcast Corp. (Nasdaq: CMCSA, CMCSK) is trying to overturn last year's Federal Communications Commission (FCC) order to halt "discriminatory network management practices" by the end of 2008. The MSO, in an a 101-page opening brief filed July 27 with the U.S. Court of Appeals for the District of Columbia Circuit, argues that the FCC overstepped its authority in issuing the order, in part because its action didn't follow "any federal statute, regulation, or precedent," meaning there wasn't any " 'law' to violate."

The case is important because other broadband ISPs have privately feared the FCC order could hold jurisdiction over them as well. The issue stemmed from a firestorm of complaints in late 2007 about Comcast's earlier throttling of some upstream peer-to-peer (P2P) traffic. The MSO claimed it was temporarily delaying certain P2P uploads on a "content-agnostic" basis as part of its ongoing network management practices. But on Aug. 1, 2008, the FCC voted 3-2 that the practice was tantamount to blocking, violating the Commission's 2005 "Policy Statement" on network neutrality. The commission released the nitty gritty details a few weeks later, requiring Comcast to cease its contested practices by Dec. 31, 2008, or face "an immediate injunction." (See FCC Throttles Comcast and FCC Details Comcast Order .) By then, however, Comcast had already begun to migrate to a "protocol-agnostic" network management system, deployment of which was completed by the end of last year. Regardless, Comcast still wants the appeals court to vacate the original FCC order. (See Comcast Goes 'Protocol Agnostic' Everywhere .) In its brief, Comcast contends that 6 to 7 percent of its high-speed Internet subscribers use P2P protocols to share files at any time during a given week, but the activity consumes about half (and sometimes as much as two thirds) of its total upstream bandwidth. The FCC declined to comment on the appeal, but according to the briefing schedule, it has until Sept. 21 to respond. Final briefs are due by Nov. 23. The FCC and Comcast won't be fighting this one alone. The National Cable & Telecommunications Association (NCTA) , NBC Universal , and Qwest Communications International Inc. (NYSE: Q) have appeared as "intervenors" in support of Comcast, while Vuze Inc. , Consumers Union of U.S. Inc. , the Consumer Federation of America, Free Press , Public Knowledge, and the Open Internet Coalition are doing the same on the behalf of the FCC. — Jeff Baumgartner, Site Editor, Cable Digital News