Not Neutral

02.27.15 3:29 AM ET

Comcast Now Says It Will Not Sue FCC

The company says the FCC overreached by passing rules to stop Internet service providers from blocking sites and slowing traffic. The problem is, Comcast’s admitted to doing just that.

Despite tens of millions of corporate dollars in last-minute lobbying, the Federal Communications Commission passed new rules Thursday reclassifying the Internet as a public utility and preventing Internet service providers from artificially slowing down the Web.

Now Comcast is calling “inevitable” lawsuits to nullify the rules a “certainty,” and the company says it will pressure legislators to draft a law that will override the FCC’s decision.

“After today, the only ‘certainty’ in the Open Internet space is that we all face inevitable litigation and years of regulatory uncertainty challenging an Order that puts in place rules that most of us agree with,” David L. Cohen, executive vice president of Comcast, said in a statement. “We believe that the best way to avoid this would be for Congress to act.”

Comcast, Cohen said, has “no issue with the principles of transparency and the no blocking, no throttling, and no fast lanes rules incorporated in today’s FCC Order.”

“[It’s] important to note Comcast supported the 2010 rules [that initially attempted to ban blocking traffic] and currently is the only company in America required to abide by those rules,” Sena Fitzmaurice, vice president of government communications for Comcast, told The Daily Beast on Thursday.

But Comcast’s history of actively blocking, throttling, and creating “fast lanes” is the very reason it is the only company in America required to abide by those rules.

In 2008, the FCC punished Comcast for slowing all traffic coming to and from BitTorrent—everything from downloaded movies to a King James Bible—without telling its customers. Three years later, Comcast agreed that it would never again artificially slow traffic to content, as part of a concession to the FCC that would allow it to merge with NBCUniversal.

But now that all Internet service is classified as a Title II utility, those sanctions are set to become truly enforceable—and not only applied when providers are caught red-handed. So the telecoms are fighting back.

“The reason why we’re getting so much saber rattling in the last few weeks is because these companies are going to have a much harder time overturning these rules than the weak rules that were there in the past,” says Craig Aaron, president and CEO of Free Press, a nonprofit that supports net neutrality. In the past, “they knew the result would be either the FCC would never enforce the rules, or they would file a lawsuit and get it overturned.”

While the specifics of the new rules have not yet been released, reclassification will force Internet providers to reach speed and reliability benchmarks while outlawing blocking traffic to competitors. That’s why, Aaron says, the immediate shift to the courts and to Congress was no surprise.

“The FCC has never done anything worthwhile where there wasn’t a lawsuit,” he says.

What is a surprise, Aaron says, is that telecoms are now trying to claim net neutrality as their own.

“They’ve spent millions and millions of dollars lobbying against this,” he says. “It’s a testament to how far we’ve come in this debate that the opponents of this are now claiming to be the biggest net neutrality advocates.”

Comcast, by the way, was not alone in its willingness to block or slow traffic from specific websites. In 2013, Verizon attorney Helgi Walker stated under oath that “we should be able to [block competitors’ websites]. In the world I’m positing, you would be able to,” she added, citing a “First Amendment right” to “edit” content.

On Thursday, Verizon put out this statement:

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“Verizon remains committed to an open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. We have always focused on providing our customers with the services and experience they want, and this focus has not changed.”

The company then put out a secondary statement in Morse code, joking that the regulations “brought 1930s regulations to the 21st-century Internet.”

Now Verizon will likely join its lobby, the National Cable and Telecommunications Association, in pushing for a new bill in Congress.

“The bills we’ve seen out of Senate Republicans so far have sort of paid lip service to net neutrality, but they’ve stripped a lot of the authority to somehow enforce it,” says Jeremy Gillula, a staff technologist at the Electronic Frontier Foundation.

Congress might instead vote to provide less funding to the FCC, thus making lawsuits against telecoms for rule-breaking harder to find, enforce, and defend.

But any legislation that passes both the House and Senate would have to be signed by President Obama, who already wrote to FCC Commissioner Tom Wheeler to help outline the rules that were passed Thursday.

“If it goes to litigation, other than make a lot of noise, there’s not much to do when it gets to the courts,” says Gillula. “If it goes to Congress, and it looks like they’re going to move on it, people can at least band together and make their voices heard.”

In the interim, first thing’s first for Internet service providers: Get a look at the rules.

“There were no bombshells today,” says Gillula. “To be honest, today we didn’t really learn anything amazing. The next big step is to see the rules.”

Update – 2/27/2015, 11:30 a.m.: Comcast Vice President of Government Communications Sena Fitzmaurice sought to clarify that the company will not sue the FCC, despite a statement from the company’s Executive Vice President David L. Cohen yesterday saying “the only ‘certainty’ in the Open Internet Space is that we all face inevitable litigation.”

“AT&T and Verizon have publicly, vocally said they will sue. Comcast has not,” she said. “We haven’t seen the order, we don’t know what is in it – our reference to inevitable regulation is related to the very direct statements by others they will sue – not that we will.”

When asked to clarify if “when Cohen refers to ‘we all,’ he is not referring to Comcast or a trade organization of which Comcast is a part,” Fitzmaurice said:

“Comcast has not said it will sue… [He] means all players in the marketplace.”

Asked if “’we’ in this instance [as stated in yesterday’s press release] does not mean ‘ourselves and others,’ as in the dictionary definition,” Fitzmaurice responded, “Comcast will not sue. Full stop.”