The policy statement (pdf) that guides the FCC's hand in matters of network neutrality is not law, and is intentionally vague enough to allow providers to get away with anything short of an outright traffic blockade. So when the FCC tried to sanction Comcast last year for throttling upstream P2P traffic for all users (regardless of congestion), it wasn't too surprising to see Comcast fight the FCC's authority in court.

Last year's FCC order required that the carrier stop the more heavy handed traffic management system they were using by the end of 2008. Comcast obliged, and has since implemented a "protocol agnostic" system that only throttles users if they're on a congested node, and if the targeted user is a major reason why.

The carrier also took major steps toward transparency by implementing a 250 gigabyte per month cap. Our users had been complaining about Comcast's use of an invisible cap for the better part of the decade, noting it was impossible to curtail excessive use if Comcast didn't provide a concrete definition. While the new system seems to be working well for most Comcast users, Comcast's still busy fighting the FCC's ruling.

Late last month, Comcast filed a 101-page opening brief filed July 27 with the U.S. Court of Appeals for the District of Columbia Circuit. The filing claims the FCC overstepped its authority in issuing the order, insisting that because the network neutrality policy statement isn't law, Comcast can't be punished (not that they were, as we're reminded -- the "sanction" included no fine, new rules or penalty of any kind). Of course efforts to define network neutrality protections by law have also been fought by all major carriers, including Comcast.

While network neutrality protection laws may not be popular among people employed in this sector, there's no denying that the threat of regulation on this front has generally kept carriers well behaved. That threat was already pretty tepid on the neutrality front, in the form of principles that were intentionally designed to be fairly wimpy. Take away the possible threat of government action and it's very likely that good ISP behavior comes to an end.