I wasn't there on Friday, but I have heard oral argument for the FCC in the Comcast/BitTorrent case was a disaster. So why has Comcast suddenly become a big fan of regulatory authority for the FCC
, under the right circumstances, etc.
Answer: Comcast fears to win too much. The fear that the FCC will have no jurisdiction, leaving critical infrastructure entirely unregulated, has set off panic in policy circles. As one person put it on a list I read: "do you really think people will sit still in Washington when they find out that if something goes wrong with what has become our primary platform for communication and commerce, they can't do anything
This is, of course, the Nirvana to all those Libertarian think tank groups and what Ken Ferree and Michael Powell hoped to achieve. But for Comcast, which is a company trying to make money and not terribly interested in Libertarian theory except insofar as it makes fleecing the consumer flock easier, this is a disaster. It is rather like Spike's little speech to Buffy and the Scoobs at the end of Buffy second season
We like to talk big, vampires do. 'I'm going to destroy the world.' It's just tough guy talk. Strut round with your friends over a pint of blood... the truth is I like this world. You've got dog racing. Manchester United. And you've got people. Billions of people walking around like Happy Meals with legs. It's all right here.
Substitute "customers" for "people" and that pretty much sums up Comcast's attitude.
What Comcast wanted, and still wants, is an FCC with jurisdiction
but no authority
. That is to say, they want an FCC that appears to have authority to do something, but when push comes to shove is prevented from actually doing anything Comcast doesn't like. Which is why Comcast wanted to win on procedure and, perhaps, get the court to threaten the FCC that it had no authority. In that universe (which could still come to pass), Comcast could keep Congress from giving the FCC explicit authority by saying it has jurisdiction but keep the FCC from doing anything by claiming that it lacked authority for any specific action.
Now Comcast faces the likelihood that the FCC will be plainly stripped of all authority. Worse, everyone else understands this as well. And while the true believers are all into destroying the world, the more pragmatic vampires like Comcast are doing their best to avoid panic and signal their buddies on the D.C. Circuit that while they may like to talk big, it would be a shame to screw up a system that at present delivers so many little Happy Meals on legs.