Comcast vs. the FCC
In a Washington, D.C., court, those judges reportedly raised questions on whether the Commission, then helmed by Kevin Martin, overstepped its authority when it hit the MSO with the order back in 2008 that forced Comcast to move off its bandwidth management system. The FCC held that Comcast's P2P-throttling system went against principles outlined in the Commission's Internet "Policy Statement." (See FCC Throttles Comcast.)
Although Comcast pledged to migrate to a "protocol agnostic" platform before the FCC enacted its wrist slap, Comcast is appealing the order on grounds that it believes the FCC acted in the absence of any rules or laws that it can enforce, and it wants the whole blemish on its record removed. (See Comcast Goes 'Protocol Agnostic' Everywhere and Comcast Strikes Back .)
That picture could change, however, if the FCC is successful in establishing formal network neutrality rules. The appeals case, which could take months to resolve, could have an impact on that rulemaking effort, being headed up new FCC Chairman Julius Genochowski. (See FCC Sets Sail on Internet Rulemaking .)
For now it appears the judges aren't buying the argument that the FCC Internet policy statements justifed the order.
"You have yet to identify a specific statute," Judge A. Raymond Randolph said repeatedly to FCC General Counsel Austin Schlick, according to The Wall Street Journal.
— Jeff Baumgartner, Site Editor, Cable Digital News