In response to an FCC investigation, Comcast has been trying hard to convince the agency that the company's forging of TCP packets to throttle P2P traffic for their users is perfectly reasonable -- as per the definition of reasonable in the FCC's network neutrality policy statement
. That has involved using the word reasonable a lot in a new terms of service
, and issuing an 80 page statement to the FCC that used the word reasonable forty times
With Comcast apparently figuring out that repetition of a word doesn't alter reality, the cable giant is now arguing that even if their traffic shaping does
violate the FCC's policy statement, the FCC lacks the authority
to do anything about it. In a new filing
(pdf), Comcast Executive VP David Cohen hints very strongly that they'll take legal action if the FCC attempts to fine the company.
"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," Cohen says. "Bearing these facts in mind should obviate the need for the Commission to test its legal authority."
Cohen goes on to deny the FCC's suggestion that there isn't adequate transparency for customers, given "we communicate appropriately with our customers." That's pretty entertaining from a company that first outright denied they were throttling P2P traffic, followed by months of semantic denials. They've still yet to fully explain exactly what they're doing to P2P traffic within even the finest print of the company's terms of service.
In lock step with Comcast, National Cable and Telecommunications Association boss Kyle McSlarrow engaged in a 15 minute monologue
with reporters this morning, arguing that regulators should essentially butt out, because as overseers of industry they're in no position to oversee industry (or something like that). McSlarrow also suggests there's no need for consumers to fill their pretty little heads with the technical specifics of TOS agreements and network operations:
"We're not blocking access to any application, and we don't throttle any traffic."
McSlarrow said Thursday that he believes Comcast has always been transparent enough about its practices and that it's impractical for cable operators to reveal, on an application-by-application basis, how they manage their networks. "If you're disclosing 8,000 things, no one's going to read these things," he said, adding that there's also a chance that "proprietary" information could get out.
Comments from Martin at the first hearing in Hartford seem to suggest he's leaning very heavily toward at least fining the company for not being forthcoming with customers. If so, it looks like he can expect a long, drawn out, "Comcastic" battle in the courts.