FCC, Solicitor General ask Supreme Court to consider cable-modem case

The FCC and the Solicitor General’s office late Friday filed separate petitions asking the U.S. Supreme Court to hear an appeal of a ruling that disagreed with the FCC’s stance that cable-modem offerings are strictly information services--a key aspect of the agency’s effort to encourage broadband deployment.

As a information service, a cable-modem offering is not subject to the myriad regulations that burden providers of telecommunications services, including unbundling obligations. Some industry analysts believe this FCC position is a key reason for the successful deployment and adoption rates of cable modems, and telcos have long asked that their DSL deployments be treated the same way.

But the Ninth Circuit Court of Appeals last October ruled in the “Brand X” case that cable-modem offerings are information services with a telecommunications component. The appeal court did not determine the classification on the merits of the case but ruled that it was bound by a Ninth Circuit precedent that predated the FCC’s determination that cable-modem packages were information services.

With this in mind, the Department of Justice--through Acting Solicitor General Paul Clement--recommended that the Supreme Court take the case.

“This case is likely to determine the regulatory classification under the Communications Act that will apply to broadband (i.e., “high-speed”) Internet access services in the United States,” according to the DOJ petition. “Absent this Court’s review, … a vastly important aspect of national telecommunications policy will have been settled in the Ninth Circuit, and for all practical purposes throughout the country, without any evaluation whatever of the FCC’s contrary interpretation of the statute it is charged with administering.”

Not surprisingly, cable officials such as National Cable & Telecommunications Association President and CEO Robert Sachs supported the petitions.

“The reversal of the Brand X decision is important because, if affirmed, it would impose on cable modem service cumbersome regulation that would deter innovation and development of broadband services and technology in the United States,” Sachs said in a prepared statement. “We are pleased that the FCC and Department of Justice have called on the Supreme Court to reverse this decision.”

But others fear that a Supreme Court reversal of the Ninth Circuit would result in telco-cable duopoly over broadband services that could leave other competitors without a way to access high-speed customers.

“We do not believe the FCC and the cable companies will be successful in seeking Supreme Court review. They are just delaying the inevitable,” Dave Baker, EarthLink vice president of law and public policy, said in a prepared statement. “Instead of fighting to protect cable monopolies, the FCC should recognize that cable-modem and other broadband users deserve choice in high-speed Internet providers. We are confident that the Supreme Court will recognize what the Ninth Circuit has ruled several times--that cable modem service contains a telecommunications service.”