If I Love The FCC's Comcast-BitTorrent Order So Much, Why Did I Appeal It?

So last Friday, Media Access Project filed 3 Petitions for Review asking the federal courts to order the FCC to order Comcast to stop blocking p-2-p immediately. None of this wait until the end of the year crap. We filed on behalf of Vuze.com (in the Ninth Circuit), Consumers Union (Second Circuit), and PennPirg (a member of Consumer Federation of America) (Third Circuit).

Comcast, for its part, filed in the D.C. Circuit. I have not heard of any other filings, but it is possible.

More details, and what comes next, below . . .

Yo Harold! I thought you loved the FCC’s Comcast-BitTorrent Order so much you wanted to marry it? What gives?

Go look at MAP’s press release about the Order and my own blog post after the text of the Order came out. As I said at the time, I think the analysis in the Order and the result are one hundred percent correct and a huge win. But giving Comcast one month to issue a report and then until the end of the year to stop messing with p-2-p traffic is a real problem. Mind you, I do not subscribe to the view that this proves the Comcast investigation was a farce because Kevin Martin is an evil bastard so it must not be a good thing. The Order was damn hard to get out as it was, and I recognize a political decision to get away from Comcast’s inevitable response that it could not possibly come into immediate compliance.

But thinking about it, I became convinced this could create real enforcement issues down the road. As a first stage, Comcast must submit a full report to the FCC on September 19. Suppose Comcast asks for what seems a reasonably delay, such as a week or two? Then they submit a massively incomplete report. More delay while Comcast and the FCC argue about compliance. We cycle to the end of the year; Comcast spins it out another few weeks. Now we have a new FCC. Comcast files new motions, starts the cycle going, takes another bite at the apple. If it is a McCain FCC with Chairman McDowell, guess what happens? (Hint, McCain’s tech policy does not speak highly of net neutrality.)

Even if Obama wins, Comcast can continue to delay and delay and delay. Meanwhile, every day, Comcast subscribers and others trying to use p-2-p suffer.

By filing these Petitions we make sure that won’t happen. If Comcast actually does comply (and I mean really comply), all well and good. The FCC can file a motion to dismiss our Petition as moot. But if, as I suspect, Comcast will try to drag this out indefinitely, the FCC will be required to issue an immediate injunction against Comcast once we win.

So why didn’t you file a request for an emergency stay?

Here’s the problem. I am not suing Comcast. I am filing an appeal from an FCC decision. I can’t ask for a stay because I actually want the FCC Order to go into effect. If I ask the FCC for reconsideration and request they issue an immediate stay, I lose jurisdiction in the federal court because under the relevant statutes and case law, if I have a Recon Petition pending before the FCC, I cannot bring my case in the federal court until the FCC addresses my Recon Petition. (You will note Comcast has not filed for a stay at the FCC either, but since they are seeking to have the court overturn the FCC they can ask for a stay of the FCC Order fairly easily.)

Yes, there are some complicated maneuvers that you can use to try to get around this. But it’s my call to keep things simple and do a clean Petition, at least for now.

Comcast says you’re a bunch of hypocrites engaged in ‘forum shopping,’ whatever that is.

‘Forum shopping’ is the word used when you don’t get the court you want because other people went somewhere else. Comcast, for its part, is filing in the D.C. Circuit despite the fact that the Third Circuit courthouse in Philadelphia is 10 blocks away from Comcast HQ. It is understandable why Comcast would like to go to the D.C. Circuit instead, given the reputation the D.C. Circuit enjoys as a bastion of pro-business anti-regulatory activists (although Comcast has been disappointed before when it put its trust in the D.C. Circuit’s general anti-FCC bias). Still, like the Fox News folks who mocked Clinton for playing the “gender card” but now accuse the media of sexism toward Palin, Comcast hopes no one puts two and two together on this.

I thought You Said Comcast Couldn’t Appeal.

Back when Comcast was pushing the FCC to decide this under Section 312 of the Communications Act, I wrote this post explaining why Comcast had painted itself into a corner on its ability to appeal by demanding that the FCC issue a show cause order and schedule a hearing under Sections 312(b) & (c). But the FCC did not act under Section 312(b), so Comcast has a plausible argument that they do not need to exhaust their administrative remedies first because the Order the FCC actually issued is a final Order effective immediately on release (as the Order recites in the ordering paragraphs). I still think Comcast waived the notice and authority arguments when they got notice in the Adelphia Transaction Order in 2006. We’ll see if the court agrees with me.

O.K., so what actually happens next?

The FCC will refer all the Petitions it receives by the deadline (c.o.b. today) to the Judicial Panel on Multidistrict Litigation. The Panel will then determine by lottery which circuit gets the case (the FCC’s Office of General Counsel has a good public notice explaining how this works here). All the other courts will (barring any unusual circumstances) transfer the cases to the court which won the lottery, which will consolidate them, set a briefing schedule, and do all the usual court stuff. Any subsequent Petition filed by anyone else will be transferred to the court that wins. Parties may also file motions to intervene in any of the Petitions.

After the transfer, parties may file motions asking the court that won the lottery to transfer the matter to a different court (Comcast tried that and lost in our litigation over leased access in the Sixth Circuit) or for a stay (which Comcast won in the Sixth Circuit) or for any other immediate relief (I expect Comcast to challenge our standing, as they have done in the the cable ownership litigation (where we have intervened to defend the FCC’s 30% ownership cap), on a theory that actual users of the system have no legal interest at stake). Other parties may also file to intervene or appear as amicus curia.

Final thoughts?

When we started down this road last November, I said that the most important thing we will get out of this process is a resolution of all the unanswered questions about FCC authority. I still think that’s true. Wherever you come down on the question, we will get an actual answer (unless the court dismisses Comcast’s appeal on procedural grounds).

Stay tuned . . . .

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2 Comments

  1. Casey says:

    Good explanations. Although I see that Comcast is now suing the FCC. How does this affect the Petition filings?

  2. Great analysis, as always, Harold. I was particularly interested in your take on the Comcast appeal given your previous posting on how Comcast waived that right in the Adelphia Order. Thanks for clearing that up.

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