Below is the letter sent to the FCC today by the Hands Off the Internet coalition:

November 7, 2007

The Honorable Kevin J. Martin
Chairman
The Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

Re: Request for FCC Review of Comcast actions involving BitTorrent

Dear Mr. Chairman:

During your tenure as FCC chairman, you have supported the free market over government regulation as the best way to preserve free expression and speech while also bringing new benefits to Internet users.

The Hands Off the Internet coalition has supported this view, as we believe it is consistent with America’s traditional “light regulatory touch” Internet policies that have enjoyed strong bipartisan support for more than a decade.

As you know, the cornerstones of today’s open Internet are the four principles embedded in the FCC’s August 2005 net neutrality policy statement:

1. Consumers are entitled to access the lawful Internet content of their choice;
2. Consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement;
3. Consumers are entitled to connect their choice of legal devices that do not harm the network; and
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

These principles are the necessary safety net to protect consumers and the openness and freedom of the Internet.

Comcast’s actions toward BitTorrent: Initial reports and subsequent confusion demand FCC investigation

Comcast stands accused of violating the FCC’s four principles. The company has responded by offering the rationale for the actions it took. Now the ball is in your court.

The FCC must determine if any of its four principles have in fact been violated. If not, and the process has been fair and open, then so be it. If after reviewing the facts, the FCC determines that the company has been in violation, then the FCC must determine the remedy.

With both outcomes, the process works and the integrity of the four principles are intact.

The FCC is on firm ground to investigate this possible violation of the open Internet

From a legal standpoint, Mr. Chairman, we believe the FCC has clear authority to enforce its four principles. Title 1 of the Communications Act of 1934 specifically grants the FCC the power to:

“regulat[e] interstate and foreign commerce in communication by wire and radio [and to] perform any and all acts, make such rules and regulations, and issue such orders” to fulfill this mission.

In 2005, in the Brand X case, the U.S. Supreme Court upheld the FCC’s authority, writing that provisions in the Communications Act:

“give the Commission the authority to promulgate binding legal rules…. [Also,] the Commission has jurisdiction to impose additional regulatory obligations [on Internet Service Providers under its authority] … to regulate interstate and foreign communications….”

Finally, as you testified to the Senate Commerce Committee on September 12, 2006 when asked if the FCC had authority to stop an Internet provider from blocking or degrading access:

“The Commission does have authority under Title 1 of the Communications Act, and indeed last summer the Supreme Court… stated that the Commission has ancillary authority to adopt additional rules over the infrastructure providers of broadband access…. So I think we do have that authority.”

We believe you do, too. Mr. Chairman, we were on record during the 109th Congress in support of codifying these principles into federal law. Though the legislation was held up and did not pass into law, we remain committed to these Four Principles and we urge you to move expeditiously to resolve any possible violations and uphold their integrity.

Sincerely,

Mike McCurry
Co-Chair

Christopher Wolf
Co-Chair