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The Federal Communications Commission likes to describe the enforcement action it took against Comcast (CMCSA) for its overzealous network management techniques as “modest.” Which is an apt description, since it really contained no substantive punishment. Certainly, requiring Comcast to disclose more information about its traffic management practices seems a mere slap on the wrist for a company that deliberately interefered with BitTorrent traffic in violation of Internet openness principles. But Comcast, which wants a court to reverse and vacate the FCC decision, feels even that is too much. “The order is unlawful because it enforced mere policy – not any provision of federal law – against Comcast,” the company said in a brief filed with the D.C. Circuit Court of Appeals this week. “The commission’s action was procedurally improper and violated bedrock principles of fair notice. .. the FCC erred in enforcing mere policy … and this court can and should dispose of this case on that ground alone.”

In other words, since the FCC’s network neutrality principles haven’t yet been codified, Comcast can’t be held accountable for violating them. The FCC, of course, disagrees. In a filing of its own it wrote, “[FCC] determinations were lawful and reasonable … Congress created the FCC for cases such as this one.”

Indeed. And while it’s true that those ‘Net neutrality principles Comcast ran afoul of aren’t yet official rules, they clearly will be soon.

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