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The OTHER lawsuits challenging the FCC decision
From: David Farber <dave () farber net>
Date: Fri, 5 Sep 2008 11:25:11 -0400

Begin forwarded message:

From: Brett Glass <brett () lariat net>
Date: September 5, 2008 11:14:23 AM EDT
To: "David Farber" <dave () farber net>, "Ip ip" <ip () v2 listbox com>
Subject: The OTHER lawsuits challenging the FCC decision


I see that you've covered the Comcast challenge to the FCC "network management" order on your list. But there are three other lawsuits which haven't been noticed by the press or documented on your list.

As someone who commented on the proceeding, I received an envelope this week from Harold Feld's Media Access Project containing voluminous copies of three nearly identical lawsuits, filed by Vuze, Inc., PennPIRG, and Consumers' Union in three different circuits. Believe it or not, all of these suits challenge the FCC ruling as well.

The lawsuits are "petitions for review" of the FCC's recent decision regarding Comcast's network management practices. Yet, despite their heft, they challenge one (and only one) provision of the FCC's recent decision against Comcast: the provision which gives Comcast a bit of time to figure out and implement a different network management scheme than the one it has been using. The PennPIRG lawsuit, for example, states:

"Petitioner seeks review of the Commission's failure to order Comcast to cease its practice immediately on the grounds that it is contrary to law, and is otherwise arbitrary and capricious. Specifically, the OPINION AND ORDER failed to give adequate weight to the ongoing inquiry to consumers unable to access many Internet services, and to P2P content providers who are therefore unable to reach their audience."

The claims above are specious. It is not this one provision but the entire order that is contrary to Federal law -- in particular, 47 USC 230(b), which mandates that Internet service remain unfettered by regulation and supercedes any policy that might be suggested by the FCC. What's more, there is no evidence that consumers are "unable to access many Internet services" (Comcast's throttling does not prevent access, and only limits traffic from content providers -- most of them illegal -- which use delivery methods that abuse Comcast's network) nor that legitimate content providers are failing to reach their audiences.

Also, were Comcast ordered to rip out all of its network management equipment without having time to engineer replacements, millions of consumers' Internet service will be impacted by congestion due to P2P.

Finally, given the slowness of the courts, it seems unlikely that the suits would even be considered before the deadline which the FCC gave Comcast.

So, why is inside-the-Beltway lawyer Harold Feld filing the suit "on behalf of" multiple lobbying groups? I've asked several attorneys, and they say that the likely motivation is to head off, delay, or otherwise "monkey wrench" the serious and well deserved challenge to the ruling by Comcast. I suspect that these multiple frivolous lawsuits, all in different circuits, are intended to keep review of the FCC's decision out of the DC Circuit, which has been the most willing to challenge the legality of the FCC's rulings. (If they are consolidated with Comcast's challenge, the case might be heard in a different circuit -- or, if they proceed independently, they might produce differing results which would require Supreme Court review.) In short, the suits appear to be a procedural move to hinder serious reconsideration of the flawed (and, IMHO, illegal) FCC order.

One can only hope that the courts will recognize this and throw them out. One can also hope that organizations such as PennPIRG and Consumers Union will come to their senses and recognize the anti- consumer effects which the FCC order has already had -- including bandwidth caps, surcharges, and deterrence of would-be investors in competitive broadband solutions. These organizations should not, IMHO, be spending their money on lawsuits and diversionary tactics that harm consumers.

--Brett Glass

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