FCC RULING ON INTERNET OVER CABLE CHALLENGED IN COURT
With ink barely dry on FCC’s ruling that Internet service delivered over cable was “information service,” coalition of consumer groups filed suit challenging agency’s decision. Media Access Project (MAP), representing Consumer Federation of America, Consumers Union and Center for Digital Democracy, didn’t reveal substance of its arguments in one- page filing to U.S. Appeals Court, D.C., saying only that ruling was “arbitrary, capricious, an abuse of discretion, contrary to statutory authority, and otherwise not in accordance with law.” MAP Pres. Andrew Schwartzman said FCC’s ruling violated public’s First Amendment rights to engage in uncensored “social, artistic and political discourse, as well as to receive information.” Specifically, groups objected to FCC’s determination, saying it freed cable operators delivering Internet services from any “open access” requirements, which would give subscribers choice among multiple ISPs. Schwartzman said FCC should have called product telecom service, which would have made it subject to common carrier regulation. Common carriers providing DSL must offer multiple ISPs under current govt. rules.
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FCC declined to comment on suit. NCTA spokesman said some MSOs, notably AT&T Broadband, Comcast and Time Warner Cable, already were offering choice among ISPs, so govt. intervention would be unnecessary. He said it was too soon to tell whether NCTA would become involved in case.
FCC earlier this month declared cable modem service to be interstate information service (CD March 15 p1). Commission also issued Notice of Proposed Rulemaking (NPRM) to examine, among other things, “whether it is necessary or appropriate at this time” to require multiple ISP access. Issue is important because cable MSOs object to “forced access,” saying market forces should determine whether they will invite competing ISPs aboard their pipes.
Decision by MAP and consumer groups to file suit came as no surprise because they had threatened to do so almost immediately after FCC made its ruling. NATOA and other state and local groups also have threatened to sue on variety of grounds.
One cable industry source said he believed groups “have gotten the FCC ruling wrong” and that Commission hasn’t truly removed all access requirements, at least not yet. Source said NPRM could very well yield determination that “forced access” was necessary: “We're not out of the woods yet.” Nevertheless, consumer groups said FCC commissioners made it clear they had no intention of imposing access requirements on cable, leaving MSOs with “the legal right to censor messages, to limit the size and nature of files which can be uploaded and downloaded and to favor content provided by their commercial partners and preferred vendors.”