The Federal Communications Commission (FCC) is appealing the
9th Circuit Court’s October 2003
ruling that
forces cable modem providers to share their lines with other
Internet service providers (ISPs).
In addition, the ruling states that cable companies offering broadband service would be subject
to the same regulations as the incumbent Bells.
“The 9th Circuit has incorrectly overridden the expert agency [FCC] responsible
for administering and interpreting the Communications Act with respect to a
communications policy issue of immediate and compelling national
importance,” said acting Solicitor General Paul D. Clement in the appeal
filed with the Supreme Court late Friday afternoon.
“If allowed to stand, the 9th Circuit’s decision would fundamentally change
the regulatory environment in which cable mode services are offered,” he continued. “The
effect of the increased regulatory burdens could lead cable operators to
raise their prices and postpone or forego plans to deploy new broadband
infrastructure, particularly in rural or other underserved areas.”
The dispute began in March 2002, when the FCC ruled that cable modem service is an
information service
and therefore not subject to the same regulations as
incumbent telephone companies. The decision effectively exempts cable broadband from regulation by the
FCC and state public utility commissions.
In response, Jim Pickrell, president of Brand X Internet Services,
sued the FCC for access to the cable lines.
Consumer groups supported the case of the traditional ISPs, saying opening
cable networks to other ISPs would increase competition.
The FCC decision two years ago marked a significant shift by the agency
under Chairman Michael Powell, who has long supported multiple platform
competition for broadband services.
Since then, the FCC has also exempted the incumbent Bells from sharing their
high-speed lines with competitors. In that same ruling, the FCC said that
the Bells would have to continue to share their legacy copper lines, a
decision that has also been bounced by the courts.
“This is about ensuring that high-speed Internet connections aren’t treated
like what they’re not: telephones,” said Powell in a statement Monday. “A successful appeal of this case would
ultimately mean lower prices and better service for American consumers. Applying taxes,
regulations and concepts from a century ago to today’s cutting-edge services
will only stifle innovation and competition.”
Atlanta-based EarthLink, one of the country’s largest
ISPs, said the FCC appeal is “just delaying the inevitable.”
In a statement issued Friday night, Dave Baker, EarthLink’s vice president
of law and public policy, said, “We do not believe the FCC and the cable
companies will be successful in seeking Supreme Court review. 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.”