The Federal Communications Commission last year should not have exempted cable Internet service providers from certain competition rules, a federal appeals court ruled this afternoon.
The decision from the 9th U.S. Circuit Court of Appeals in San Francisco instructs the FCC to reconsider its policy, which could tip the balance of power in the battle for broadband subscribers.
ISPs that deliver digital subscriber line service
They argue that the legislation requires them to open their networks and facilities to competitors, while making no such demands on cable broadband providers.
“Today’s decision . . . vindicates what EarthLink has been telling the FCC for five years now, that cable modem service contains a telecommunications service,” Dave Baker, vice president of law and public policy for EarthLink
said in a statement.
A spokeswoman for EarthLink, the nation’s third-largest ISP with 5 million customers, was not immediately available for comment.
Consumer groups also backed the case of the traditional ISPs, saying opening cable networks to other ISPs would increase competition.
At the time of the FCC’s ruling, Chairman Michael Powell said the agency’s decision would encourage greater broadband deployment. And again today, he issued a statement offering no indication of softening that position.
“I am disappointed that the Court felt that it was bound by its prior decision and did not address the merits of the Commission’s classification,” he said.
He added that the decision will “throw a monkey wrench into the FCC’s efforts to develop a vitally important national broadband policy.”
The FCC will appeal the case.
A spokesperson for Comcast
, a Philadelphia cable giant offering Internet services, was not immediately available for comment on the court’s ruling. Comcast is one of the few cable companies however that has made moves to partner with other ISPs in some areas.