The federal government has asked the U.S. Supreme Court to review a court ruling which found the FCC improperly classified cable-modem service, a subject of interest to Internet service providers seeking access to the broadband networks controlled by Comcast Corp., Cox Communications Inc. and other cable companies.
The FCC and the Office of the Solicitor General have asked the high court to review a case in the U.S. Court of Appeals for the Ninth Circuit. The commission expressed concern the appellate court ruling, if upheld, would subject cable companies to a number of regulations that could result in higher prices and impede broadband investment, particularly in underserved areas. Some of those regulations would include requiring cable companies to share their broadband networks with other carriers and contribute to federal subsidy programs, according to the government filing with the Supreme Court.
“If the court of appeals’ decision stands, the FCC will be required to regulate cable-model service – and likely other forms of broadband Internet access services – as a telecommunications service under the Communications Act, even though the commission has concluded that such regulation is inconsistent with, and would directly threaten, the important federal policy of promoting access to those services,” according to the filing.
The FCC concluded more than two years ago cable-modem service is properly classified as an interstate information service and is not subject to the common carrier regulations. The federal appeals court in San Francisco overturned that decision, ruling cable-modem service contains a telecommunications component.
In the ruling, a three-judge panel made a decision based on a prior case in the same court that pitted AT&T Corp. vs. the City of Portland. The FCC and the Office of the Solicitor General said in the filing the appeals court rejected the FCC’s finding without evaluating the merits of the commission’s decision.
“The court of appeals did not hold or suggest that the commission’s classification of cable-modem service as a unitary information service was unreasonable,” according to the filing. “Instead the court rejected the agency’s classification on the ground that, prior to the time the FCC reached its conclusion, the Ninth Circuit in Portland had already classified cable modem service as in part a telecommunications service.”
The FCC has the power to relieve cable operators from certain requirements even if cable-modem service is subject to telecommunications requirements, but the commission said in the Supreme Court filing such “forbearance proceedings would be time-consuming and hotly contested and would assuredly lead to new rounds of litigation….”
