The man who spoke for Comcast at Harvard last month has told the Federal Communications Commission that the agency has no legal power to stop the cable giant from engaging in what it calls "network management practices" (critics call it peer-to-peer traffic blocking). Comcast vice president David L. Cohen's latest filing with the Commission claims that regulators can do nothing even if they conclude that Comcast's behavior runs afoul of the FCC's Internet neutrality guidelines.

"The congressional policy and agency practice of relying on the marketplace instead of regulation to maximize consumer welfare has been proven by experience (including the Comcast customer experience) to be enormously successful," concludes Cohen's thinly-veiled warning to the FCC, filed on March 11. "Bearing these facts in mind should obviate the need for the Commission to test its legal authority."

Should we read "test" as in "test an FCC Order on ISP network management in Federal court"? Cohen presented Comcast's case at the FCC's February 25th net neutrality hearing, held at Harvard Law School. Whatever the merits of his March 11 claims, they should be examined carefully. They may represent the framework for a legal challenge against any action the FCC takes to protect consumers.

Cohen's arguments fall along three main points.

Congress has not given the FCC authority to act on this matter

The Federal Communications Commission has made clear, Cohen writes, that cable service is not a common carrier and therefore is not subject to common carrier guidelines. Cohen summons the FCC's 2002 Cable Modem Declaratory Ruling to back up this argument. The ruling invoked language contained in the Telecommunications Act of 1996 to characterize cable as an "information service" rather than a common carrier. After a long court battle, the Supreme Court backed up the FCC in its 2005 Brand X decision. The high court rejected the Brand X ISP's plea that if the FCC did not attach common carrier status to cable, cable providers could exclude smaller competing ISPs from accessing larger networks.

Comcast argues that Cable Modem settles the question: "Any attempt to justify an injunction on Comcast based on a statutory provision that is explicitly limited to common carriers would violate the Communications Act and be arbitrary and capricious," Cohen writes.

The FCC's Internet Policy Statement does not give the agency the authority to deal with the issue

The 2005 statement pledges the FCC to ensure that ISP services are operated "in a neutral manner." But Cohen insists that said declaration has no force of law. "It is settled law that policy statements do not create binding legal obligations," he argues. "Indeed, the Internet Policy Statement expressly disclaimed any such intent."

Actually, the statement declared that the FCC has the "jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner." On the other hand, FCC Chair Kevin Martin issued a comment insisting that "while policy statements do not establish rules nor are they enforceable documents, today’s statement does reflect core beliefs that each member of this Commission holds regarding how broadband internet access should function." Cohen is obviously hanging his legal hat on this ambiguity

Regulating Comcast's ISP policies may violate the Administrative Procedures Act (APA)

This is a generic protest found in many FCC filings. Congress enacted the Administrative Procedures Act in 1946 to establish uniform rules and guidelines for governmental agencies, given the enormous expansion of the executive branch over the previous dozen years. Cohen writes that the FCC is bound by the APA "not to act in an arbitrary and capricious manner" and that the law "does not permit the Commission to switch abruptly from an explicit policy of relying on market forces to a new regime in which the decisions that Internet service providers make in real-time in a dynamic marketplace are subject to governmental second-guessing and disruption."

Actually, the APA mentions "arbitrary and capricious" behavior only once—and in reference to the withholding of government documents from litigants.

The real question is how much significance to attach to any of these arguments. Legal saber rattling? Maybe. They could also pose a warning to the FCC to expect a lawsuit following any action against ISP P2P blocking. FCC Chair Martin says he hopes to finish his investigation of Comcast by late June.