Comcast has been working overtime to get the FCC off their back for the company's throttling of P2P traffic. They first argued that the throttling was perfectly reasonable -- as per the definition of reasonable in the FCC's network neutrality policy statement. That 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. Once that didn't work, they began exploring the idea of a clear 250GB month cap and over-use fees, as I first reported earlier this month.

However, the cable giant has also been 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 recent filing (pdf), Comcast Executive VP David Cohen hinted very strongly that they'll take legal action if the FCC attempts to fine the company.I've been reminding you for years that the FCC's principles on network neutrality are not law, and a well-lobbied FCC has progressively deregulated this industry to the point where it's increasingly difficult to take a ruler to carrier knuckles. But the FCC still has the authority to act, according to a 112-page submission to the FCC late last week by consumer advocacy group Free Press (more at Media Post).

"Comcast is wrong," says Free Press attorney Marvin Ammori. "Comcast is not above the law. In fact, the Commission has asserted eight different bases for its authority, and every one of these asserted bases independently confers Title I authority." The question now becomes whether FCC boss Kevin Martin will actually use that authority. It remains unlikely that Comcast will see any more than a small fine for misleading consumers about their upstream BitTorrent throttling.