Supreme court takes cable modem case

The Supreme Court today agreed to hear an appeal of a 9th Circuit Court decision that cable-modem offerings include a telecommunications-service component and are not information services as the FCC has contended.

Most legal analysts expected the Supreme Court to take the case after the FCC and the Solicitor General’s office filed petitions asking the high court to reverse the appeals court ruling, which never considered the merits of the FCC determination that cable modems are information services.

Categorical distinctions between information services and telecommunications services can be significant, because providers of telecommunications services are burdened with more regulatory and taxing obligations. Telcos have long complained that it is unfair that their DSL products—deemed telecom services in many states—have been regulated much more tightly than the primary competition, cable modems.

But the FCC made its determination that cable modems were information services after the 9th Circuit Court of Appeals had indicated that cable-modem offering were an information service with a telecommunications component. When the court was forced to revisit the question last October in the so-called “Brand X” case, the judges indicated that they were required to adhere to the precedent and did not consider the merits of the FCC’s information-service finding.

With this in mind, National Cable & Telecommunications Association President and CEO Robert Sachs said the NCTA is “pleased” the Supreme Court will hear the case.

“This case presents a fundamental question of communications law, carefully decided by the FCC and then overturned by a circuit court that simply ignored what the agency had done, refusing to accord the FCC the deference Supreme Court precedent requires,” Sachs said in a prepared statement. “Classifying cable-modem service as an interstate information service, as the FCC did, puts this innovative service on the right deregulatory path.”

FCC Chairman Michael Powell echoed this sentiment. “High-speed Internet connections are not telephones, and I’m glad the Supreme Court has agreed to review the 9th Circuit’s ruling that they are,” Powell said in a prepared statement. “The 9th Circuit’s decision would have grave consequences for the future and availability of high-speed Internet connections in this country.”

Oral arguments in the case are scheduled for the latter half of March and a decision is expected in June, according to NCTA spokesman Brian Dietz.