Imagine for a moment my local school board is considering a measure to fight childhood obesity by banning “unhealthy” food and requiring that school vending machines only provide “healthy snacks.” Now suppose I am a vendor of things such as nacho flavor chips, cheese doodle equivalents, and other foods of a similar nature. Expecting that such a rule would make it more difficult for me to sell my products, I raise my hand at the school board meeting and engage in the following line of argument.

“Are oranges healthy food?”

“Yes,” the relevant official replies.

“Are carrots healthy food?”

“Yes.”

“So all things orange, like carrots and oranges, are healthy foods. Good.” Whereupon I sit down.

Subsequently, I try to sell my nacho chips and cheese doodle equivalents to schools. When informed they are not “healthy snacks,” I become quite upset. I invoke the “Rule of Orange Things” that declares that we need to treat all orange things fairly by treating them the same, so we either have to let me sell nacho chips or ban people bringing oranges and carrots. I will also complain that there is no way I could possibly have known that nachos and cheese doodles might not be “healthy food,” since they have an FDA mandated nutrition label (so they must have nutrition) and who the heck knows what “healthy food” means anyway, since we can see that many nutritionists are now down on juice and even on certain fruits or other foods long considered healthy alternatives to cookies and sugar sodas.

In such a situation, most of us would have no problem saying that nacho chips and cheese doodle equivalents are not “healthy food” despite being orange — because what makes oranges and carrots “healthy food” has nothing to do with their color. Most of us would also agree that while their may be some marginal cases around things like apple juice v. water v. soda, there is no definition of “healthy snacks” in use outside the junk food biz that would include nacho chips and cheese doodles — mandatory “nutrition label” notwithstanding.

Which brings us to the National Cable Telecommunications Association (NCTA) filing last Thursday just at the close of the bell in the Comcast/BitTorrent complaint docket (because the FCC issued a public notice for the meeting at which it will decide the complaint, the docket is now closed).

A bit more below . . . [Read More!]

It is a rather trite cliche that those who do not learn from history are doomed to repeat it. But in law, where concepts such as precedent and law matter a great deal, there's an even bigger problem: Those who do not learn from history are likely to miss the obvious.

As we all know, Comcast has invested a lot of time in arguing that they lacked notice that the FCC would enforce the principles of the policy statement via a complaint against them. “How could we possibly have known?” Comcast has asked, winning sympathetic nods from a variety of folks. “Policy statements aren't enforceable! How can you possibly punish us for something we didn't know we might be held accountable for, all our public statements to the contrary?”

Well, let us suppose that Comcast was told two years ago today that the FCC would entertain complaints if Comcast blocked or degraded traffic. Would that make a difference? If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” I would think we could all agree that this constituted “notice,” yes? Perhaps not notice of whether or not the behavior at issue constituted blocking or degrading — that is, after all, what the Commission determines in a complaint. But certainly if the FCC had told Comcast directly, to its face, no ifs and or buts, the above quoted line, I would hope we could all agree that Comcast had received reasonable notice that parties could bring complaints to the Commission, asking the Commission to determine whether the parties had behaved in an inappropriate manner.

Because — Surprise! — exactly two years ago today, that is exactly what the FCC told Comcast.

More below . . . . [Read More!]

As the FCC's examination into our complaint against Comcast winds down, with what looks like a win for us (although with an opponent like Comcast, I am not going to celebrate a win until after the order is voted), Comcast has increased its efforts to woo McDowell and Tate with a show that “the market” will magically cure all ills by cutting a non-aggression pact with Vonage and a new ex parte filing listing all the wonderful things it has done since the Commission put our complaint out on public notice, which is an obvious sign that no regulatory action is necessary since it is merely coincidence that Comcast (and other broadband providers) have been scrambling with ever more serious urgency as the resolution of the complaint moves closer. Ah Comcast “Change we can believe in until all you stupid regulators go away and we can get back to crushing folks like insects beneath our fiber-coax heel.”

More of interest to us legal (and less credulous) types, Comcast filed a lengthy rebuttal to Marvin Amori's magnum opus on Commission jursidiction. Marvin's piece was, of course, a response to the Comcast filing after the Boston Hearing, that asserted the FCC had no authority to sanction Comcast or regulate Comcast's broadband in the first place. Mind you, Comcast told the a California district court otherwise, and got a stay of the pending class action for blocking bittorrent as a consequence. But the first lesson of law school is that consistency is only a virtue if it serves your client. In any event, this most recent filing (which has not yet shown up online for me to link to) is therefore either the rebuttal to FP's reply or merely the Nth go round in a “permit but disclose” proceeding.

This is reflected by Comcast's argument, which largely rehashes previous arguments about the limits of Commission authority and whether Comcast had proper notice it could be subject to a civil complaint and civil sanction. Fair enough. Time now for the FCC to decide and then on to the D.C. Circuit. That's what process is for, to get the arguments out so we can get a judgment and get on with our lives.

But Comcast does raise one new argument, and an intriguing one at that. And ya know, I think the Commission ought to give it to them. Heh, heh, heh . . .

Why am I chuckling? See below . . . . [Read More!]