DOJ Joins FCC in Cable Case

The Department of Justice has joined the Federal Communications Commission (FCC) in asking for a stay of an appeals court decision that could force cable companies to open their broadband networks to rival ISPs.

Meanwhile, other published reports indicate that the FCC has decided two key controversial issues — a spectrum swap involving Nextel and a VoIP fee case involving AT&T .

In the cable fight, the agencies want the Ninth Circuit Court of Appeals in San Francisco to delay enforcement of a ruling applying the same open access rules to cable providers as their telecom counterparts. The court ruling overturns a 2002 FCC decision exempting cable operators from the requirement.

A stay would give the FCC time to consider a Supreme Court appeal. The National Cable & Telecommunications Association, the cable industry’s principal trade group, has already said it will take the matter to the Supreme Court.

“We are still considering our options,” FCC spokesperson Richard Diamond told

A court spokesperson said the judges are not under any deadline to rule on the request, but the motion will keep all parties in their current positions. The court decision was to have gone into effect yesterday.

A majority of the five-member FCC wants to leave cable broadband service largely unregulated to spur investment and deployment.

But the appeals court found that the connections should be regulated like telephone networks. According to a report released earlier this week by InStat/MDR, cable giants Comcast and Time Warner account for the majority of all cable modem subscribers. Overall, six cable operators hold 91 percent of the U.S. cable modem market.

In other issues before the FCC, a newspaper report says the agency will approve a controversial Nextel spectrum swap to alleviate interference problems on frequency used by public safety agencies.

Nextel wants the FCC to relocate public safety agencies and private wireless licensees in a portion of the 800 megahertz band used by the Reston, Va., carrier. In exchange, the FCC would license a 10 megahertz block of contiguous spectrum to Nextel at 1.9 gigahertz.

In February, Verizon Wireless urged the FCC to can the proposed deal and offer the spectrum in a public auction. The Bedminster, N.J., carrier, owned by Verizon Communications and Vodafone , also cited a DOJ investigation into the push-to-talk market as an additional reason to reject Nextel’s plan.

According to the Washington Post, a three-person majority of the FCC commissioners have decided to approve Nextel’s swap proposal although, according to the newspaper, the deal will cost Nextel an additional $1.3 billion over its original projected $850 million pricetag.

The FCC has not publicly revealed any votes on either the Nextel or AT&T
matters and had no comment on the newspaper report.

In addition, the same report says the FCC will force AT&T to pay access fees for Voice over Internet Protocol (VoIP) traffic that connects to the legacy Bell systems. Such a ruling could expose AT&T to millions of dollars in fees it has not been paying to incumbent Bells.

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