The FCC's BitTorrent order "shackles" Internet service providers in their attemps to thwart online piracy, leaves network operators guessing about what reasonable network management is, undercuts the agency's own network neutrality proposal and should be vacated by the courts.
Those were the messages from the National Cable & Telecommunications Association and NBC Universal in joint comments to the U.S. Federal Appeals Court for the D.C. Circuit.
The court is preparing to hear oral arguments Jan. 8 on Comcast's challenge to the FCC's ruling that it violated the commission's open access guidelines in its management/blocking of BitTorrent peer-to-peer traffic.
Intervening in support of Comcast's challenge, NCTA/NBCU reiterated that the order, by creating binding legal norms for network management for all ISPs via an order rather that a rulemaking, violated the Administrative Procedures Act and due process.
The FCC had argued that NCTA and NBCU did not have standing in the case, but they countered that they are ISPs that will be regulated by the order going forward (NCTA), and a content provider who will be hurt by the chilling effect the order has on efforts to combat illegal content piracy.
They also say that the FCC has dealt a blow to its own case via the network neutrality proposed rulemaking launched two weeks ago.
"[T] FCC has now acknowledged that there is a legitimate need for network management by ISPs," the brief said. "Just a few weeks ago, in moving to establish the principles of the Policy Statement as enforceable rules, the FCC stated that it "recognize[s] the importance of preserving and protecting broadband providers' flexibility to manage their networks in a way that benefits consumers and will further the safety, security, and accessibility of the Internet' and that it is seeking to 'provide greater clarity regarding the Commission's approach ...[and] to provide greater predictability.' The FCC has now effectively conceded that the principles of the Policy Statement are not 'clear' as to 'who must comply and in what way' and disavowed the standard for reasonableness employed in the Order as 'unnecessarily restrictive.' "
One of the reasons FCC chairman Julius Genachowski cited in proposing to codify and expand on the FCC's Internet access policy statement was to clear up the legal questions about their enforceability. He said of the guildelines that "they have been attacked, including in pending litigation, precisely because they are not rules developed through the kind of notice-andpublic- comment process that we should commence today."
