NINTH CIRCUIT WILL HEAR LANDMARK CASE ON CABLE MODEM SERVICE
Ninth U.S. Appeals Court, San Francisco, won lottery Mon. to hear federal challenge to FCC’s declaratory ruling that cable modem service is interstate “information service.” Several challenges were filed, including one by coalition of consumer groups led by public interest law firm Media Access Project (MAP), as well as separate suits filed by EarthLink, Brand X Internet and Verizon Communications. Of 4 plaintiffs, only Brand X Internet filed in 9th Circuit, with others filing in U.S. Appeals Court, D.C. Nevertheless, 9th Circuit won lottery, said spokeswoman for judicial panel on multidistrict litigation. Now, all cases filed against FCC on issue will be combined and heard by 9th Circuit. Other entities that want to file suit against FCC in case must do so within next 60 days.
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Development is particularly noteworthy because 9th Circuit has ruled previously on issue, deciding that cable modem service was partly telecom service and partly an information service. In that case, city of Portland, Ore., tried to force AT&T Broadband to carry competing Internet service providers (ISPs) on its pipes. At that time, court expressed some frustration that FCC hadn’t already decided question but said that, absent any ruling by agency with jurisdiction, it found it was not cable service. But court also said Portland couldn’t force “open access” upon AT&T Broadband. This time around, 9th Circuit will face issue with FCC decision in place -- and one that’s different from its own. FCC said Internet delivered via cable was only “information service” and that it wasn’t subject to common carrier regulations that would require unbundling, or “open access.” That decision will have to be squared with 9th Circuit’s. FCC, in its decision, also issued Notice of Proposed Rulemaking (NPRM) to examine which govt. agencies, if any, had power to regulate cable modem service and invited comment on whether, “in light of marketplace developments, it is necessary or appropriate at this time” to require multiple ISP access (CD March 15 p1).
FCC spokeswoman declined to say whether 9th Circuit was seen by agency as friendly venue. Cable industry sources expressed satisfaction with venue, saying they believed court ultimately would defer to FCC on issue. However, MAP Pres. Andrew Schwartzman also said he was pleased, saying MAP’s attorneys had debated whether to file in 9th or D.C. circuits. “It’s fine with us,” Schwartzman said. Ultimately, MAP decided on D.C. Circuit because it “has not been overly sympathetic to the FCC’s judgment in recent times” and MAP was hoping possible ruling conflicting with 9th Circuit that would have prompted Supreme Court review. However, 9th Circuit also is friendly to consumer groups’ cause, Schwartzman said, because it already has made up its mind on cable modem service and is likely to defend its previous conclusions. No dates have been set in case.