Comcast Had “Fair Notice” Not To Block Speech and Innovation Online

Last Friday, an appeals court heard arguments on Comcast v. FCC, which centered on the landmark 2008 FCC Net Neutrality ruling ordering Comcast to stop blocking users’ ability to use peer-to-peer technologies like BitTorrent. The decision was a major victory for consumers—signifying that the FCC would act to preserve an open Internet when phone and cable companies tried to interfere with the applications and content chosen by users.

On Monday, Comcast’s Executive Vice President, David Cohen, published a blog post about the case, where he claimed, essentially, that the FCC had been unfair to Comcast.

Namely, said Cohen, Comcast lacked “fair notice” the FCC would act on consumer complaints about Network Neutrality violations.  Moreover, he said, Comcast lacked fair notice that the FCC would judge Comcast by the standards of the FCC’s well-known 2005 Internet Policy Statement, which declared that Americans are “entitled” to use the legal applications and content of their choice on the Internet.

Although Cohen doesn’t mention this part of the 2008 ruling, the FCC also stated that Comcast’s actions in that proceeding raised “troubling questions about Comcast’s candor,” which is the bureaucratic way to say “lying… a lot… to the public and government, about interfering with the Internet.”

And what Cohen doesn’t say is he has chutzpah to argue about fair notice, as Comcast gave the public no notice at all that it was blocking online technologies.

Notice to Comcast

Let’s take the Adelphia order. In 2006, Comcast and Time Warner Cable bought the cable assets of a company called Adelphia, and the FCC had to approve the transfer.

Free Press and other groups challenged the merger and requested a Network Neutrality condition prohibiting Comcast “from discriminating against providers of content, video, or voice services offered via broadband.”

The FCC rejected the condition, stating that the FCC would accept complaints and judge Comcast based on the FCC’s policy statement: “This statement contains principles against which the conduct of Comcast, Time Warner, and other broadband service providers can be measured.” And the Commission assured consumers  that “[i]f in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.”

When the FCC says “affected parties may file a complaint,” that sounds like the FCC would actually accept the complaint.  Unless the FCC was welcoming consumer complaints it planned to ignore, Comcast had fair notice that the FCC would act on complaints just like the complaint brought by Free Press and others, for “willfully blocking or degrading Internet content.”

Comcast: Notice for Me, Not for You

Comcast provided the public no notice.

Comcast was blocking online technologies in various ways from 2005 to 2008. Comcast denied the blocking over and over. When one user—Robb Topolski—proved that Comcast was blocking these technologies, Comcast kept lying.

For example, a Comcast spokesperson said, “We’re not blocking any access to any application, and we don’t throttle any traffic.”

Whatever you call that (“a lie”), you can’t call it fair notice.

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