In fact, it's still quite unclear what the rules are. Can a landlord, or the owner of a coffeehouse, restrict what is done with an Internet connection that he or she provides to customers? What can ISPs do to restrain bandwidth hogs? Can they throttle a CLASS of application (e.g. P2P) rather than just one application (e.g. BitTorrent)? Can they restrict users from running servers? What disclosures are they required to make? And if they do disclose what they are up to, can they block abusive behavior? The Constitution prohibits vague laws, and the FCC order was issued pursuant to a vague policy statement that wasn't even billed as enforceable, much less a rule or a law. And the FCC didn't commence a rule making procedure in which the public could comment on, and point out problems with, proposed rules.

For a list of 20 questions which demonstrates just how vague the FCC's order is, and how much confusion it creates in the industry, see

http://tinyurl.com/5gfn6p

The FCC (or three of the five Commissioners, at any rate) also conveniently forgot that if Congress sets a policy and puts that policy into statute, it trumps any policy that the FCC might dream up. The policy set by Congress, which is at 47 USC 230(b), says that the Internet shall remain “unfettered by State or Federal regulation.” This trumps any policy statement that the FCC might want to draft or enforce.

The Administrative Proceure Act bars regulatory agencies from becoming dictatorial — arbitrarily issuing orders without first making rules and informing the public of them. And these agencies cannot overrule Congress under any circumstance, as the FCC has tried to do in this case by enforcing a policy statement which contradicts the policy that was put into law by Congress. Comcast should prevail in this case; it would be a good thing for all of us.

As for the Media Access Project: what happened is simple. Inside-the-Beltway lawyer and lobbyist Harold Feld — whose ethics are, IMHO, on a par with those of his peer Jack Abramoff, another DC lawyer/lobbyist — filed frivolous lawsuits in multiple circuits in an attempt to divert the case from the most appropriate one to hear it. It is good that this unethical effort to sabotage the legal process failed.