As Canada's own investigation into P2P throttling slowly moves to its conclusion, the US investigation into similar practices at cable giant Comcast continues to chug along. Comcast has quite vocally insisted that the FCC doesn't actually have the authority to address the issue, but a staff attorney at Public Knowledge has dug up a fascinating nugget of information showing Comcast making exactly the opposite claim... when it suits the company's purposes.

In this case, those purposes include avoiding a lawsuit over deceptive advertising, violation of the FCC's traffic management principles, and breach of contract. A California man brought a suit against Comcast over those issues, but Comcast turned around and asked the judge to stay the case since the issues involved have "been firmly placed within the jurisdiction of the Federal Communications Commission, an administrative agency whose authority to regulate Internet broadband access companies' services is well-established."

District Judge Phyllis Hamilton agreed, saying that the issue was better handled uniformly at the national level than through a series of lawsuits in different parts of the country. As the FCC is "already using its recognized expertise to consider some of the exact questions placed before the court here," Hamilton stayed the case until the FCC makes some sort of decision.

This is exactly what Comcast was asking for, suggesting either that the cable giant has abandoned its quest to gut the FCC's authority to rule on network management issues or that different parts of the company simply make whatever argument is convenient at the time.

With the FCC, a federal judge, and Comcast itself, all saying now that the agency has the needed authority, perhaps a lawsuit can be avoided if the FCC does choose to lay down the smack. Comcast has already chosen to move to a protocol-agnostic throttling solution that won't discriminate against P2P apps anyway, but FCC watchers have worried that the cable company could tie any ruling up for months or years in the courts simply out of principle; few ISPs are excited about the idea of FCC regulation, even when they voluntarily choose to do what that regulation would require.

It's not surprising, then, that the cable lobby's basic proposal for FCC reform involves gutting the agency.