State Laws/Franchising

Lawyer: Brand X Case About Cable Blocking

3/23/2005 9:30 AM Eastern

Washington -- The Supreme Court case on the regulation of cable’s high-speed-data service is “massively important” and “about search engines not having to pay cable companies to get favored treatment or being discriminated against because Yahoo! [Inc.] has paid for faster treatment and Google [Inc.] can’t get it,” attorney Andrew Jay Schwartzman said Wednesday.

Cable companies and the Federal Communications Commission are urging the Supreme Court to keep cable-modem service deregulated and to allow cable companies to dictate who gets access to their data facilities.

But Schwartzman -- who is representing the Center for Digital Democracy on the other side of the case -- wants the court to say that cable must provide nondiscriminatory access to competing Internet-service providers not only as matter of law, but as a means of preserving an Internet uncorrupted by commercial self-interest.

“It’s massively important,” said Schwartzman, a lawyer with the Media Access Project, which helped to kill FCC relaxation of media-ownership rules. “It is about the future of the Internet. It is about the artist getting information out and not having it blocked.”

Schwartzman addressed the implications of National Cable & Telecommunications Association vs. Brand X Internet Services at a press conference here that was also carried on a conference call. He spoke along with other attorneys and public-interest advocates.

Although cable operators insist on maintaining close control of their networks, they generally endorse allowing subscribers to access any legal Web site and to subscribe to competing voice-over-Internet-protocol providers without interference.

The high court is to hear oral arguments March 29 in the Brand X case. The court could return the case to a lower court, uphold the FCC, or uphold the lower court’s holding that cable-modem service is subject to open-access rules.

Even if the open-access rules were to apply, the FCC is permitted to use forbearance authority to remove those regulations.

But Schwartzman said the FCC’s exercise of forbearance authority must be based on findings that “certain competitive goals had been met.” He called that a high hurdle.

“The forbearance point is awfully important,” he said.

The FCC avoided using forbearance as an initial matter in March 2002, when it decided to classify cable-modem service as an unregulated interstate information service. Had the agency chosen to label cable-modem service as a telecommunications service with open-access rules applying, the agency would have then been forced to use forbearance to deny access to competing ISPs, Schwartzman said.

“The FCC engaged in self-help and essentially invented a regulatory classification that never really existed in and of itself. That’s what the case is really about,” he added. “I hope that you focus on the forbearance discussion in the arguments and the way it’s addressed in the briefs as a kind of Rosetta Stone or touchstone in how to figure out this case.”

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