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Supreme Court's (Brand) X Factor

5/03/2010 9:15 AM

If various reports are correct, the White House could be vetting a strong voice for Title II regulation of Internet access to replace retiring Justice John Paul Stevens on the High Court.

The next Supreme Court justice could be a judge who twice has held that cable- modem service is at least partly the kind of telecommunications service that the FCC can regulate under a Title II common carrier regime.

The FCC is currently contemplating that and other moves after the federal appeals court for the D.C. circuit ruled that it had not justified its network management decision against Comcast under its Title I designation for cable-modem service.

According to reports late last week by various news services, the administration has been talking with Judge Sidney Thomas of the Ninth Circuit federal appeals court about the upcoming vacancy on the High Court.

Thomas delivered the opinion in the  AT&T vs. City of Portland case in 2000, which held that open-access mandates could not be applied to AT&T by the city as part of a franchise agreement because Internet (@Home) was not a cable service, but at least partly a telecommunications service.

“Under the Communications Act, [the] principle of telecommunications common carriage governs cable broadband as it does other means of Internet transmission such as telephone service and DSL,” Thomas wrote in the Portland decision.

Ironically, that designation could open the door to federal access regulations if the FCC decides to classify cable broadband as a Title II telecommunications service subject to interconnection and nondiscrimination requirements.

Thomas actually twice came to the conclusion that cable modem service included a transmission component that was subject to Title II regs. The second time was when he concurred in the court’s second call on classification. That came in the Brand X case, which challenged the FCC’s subsequent classification of the service as a more lightly regulated information service.

The Brand X challenge was based on the court’s earlier conclusion in Portland that cable broadband had a telecommunications component tied to the transmission element. Brand X was eventually overturned by the Supreme Court, which deferred to the FCC’s Title I classification. But in the Brand X decision, Thomas, in a concurring opinion, wrote separately “to underscore my conclusion that City of Portland was correctly decided. Considered in its entirety, the 1996 Telecommunications Act compels the conclusion that cable modem contains a telecommunications service component.”

Thomas was tapped for the Ninth Circuit post in 1995 by the President Bill Clinton. His better/other half, former First Lady and currently Secretary of State Hillary Clinton, has been another name floated as a possible Supreme Court nominee, though she said Sunday on one of the talk shows that she was not angling to ankle her State Department gig to add judicial variety to her resume.

But if Clinton did, she could be another sympathetic ear to mandatory open access.

She was an early backer of network neutrality legislation as a senator and talked up access and connection as Secretary of State in a speech about global information access earlier this year.

Clinton said it was critical that Internet users were assured basic freedoms, including the freedom to connect “to the Internet, to websites, or to each other,” which she likened to the freedom of assembly. She was speaking globally, but also suggested American companies needed to lead by example. Of course, Thomas and the network neutrality would both have to get to the court before his Title II defense could pack a punch, but it’s worth keeping an eye on.

September