Comcast has had its day in court over the issue of "network management." News accounts suggest that the three-judge panel from the DC Court of Appeals was plenty skeptical that the FCC had the proper authority to sanction Comcast's BitTorrent blocking in 2008.

It can be difficult to guess judicial decisions based on the judge's oral questioning of the lawyers, but it's certainly possible to see where judges are having trouble with an argument. In today's case, judges repeatedly went after the FCC's contention that it was acting legally in the Comcast case. Because Comcast's behavior ran afoul of an "Internet Policy Statement" rather than an official rule, the company claims that the FCC had no grounds for action until it made the Policy Statement into actual policy (which FCC Chair Julius Genachowski is trying to do right now).

Judges questioning the FCC's legal team said that the Policy Statement was "aspirational, not operational," that the FCC had not identified a "specific statute" Comcast violated, and that the FCC "can't get an unbridled, roving commission to go about doing good."

What difference would a pro-Comcast ruling make, given that the company has already changed its traffic management practices? It would "free us of this black mark on our record," said a Comcast attorney, according to the Wall Street Journal. That attorney, Helgi Walker, comes from the high-powered Wiley Rein law firm in DC. Ironically, former FCC Chair Kevin Martin, the Republican appointee who sided with the two Democrats on the FCC in the Comcast ruling, was himself a former Wiley Rein lawyer.

In a statement after today's hearing, current FCC Chair Genachowski said, "This case underscores the importance of the FCC’s ongoing rulemaking to preserve the free and open Internet. I remain confident the Commission possesses the legal authority it needs and look forward to reviewing the court’s decision when it issues."

That decision should come in the next several months.