A federal court that once classified cable-modem service partly as a
telecommunications service has been picked to decide whether the Federal
Communications Commission was right to classify it as an information
According to FCC sources, the U.S. Court of Appeals for the Ninth Circuit was
selected over the U.S. Court of Appeals for the D.C. Circuit to hear various
appeals filed by Verizon Communications, EarthLink Inc. three consumer groups
and Brand X Internet LLC. Only Brand X filed in the Ninth Circuit.
In June 2000, a Ninth Circuit panel -- in deciding whether the city of
Portland, Ore., could force AT&T Broadband to carry competing
Internet-service providers -- ruled that cable-modem service was not a cable
service, but instead partly a telecommunications service and an information
On the basis that Portland could require AT&T Broadband to provide a
telecommunications service, the city lost the open-access case.
On March 15, the FCC agreed that cable-modem service was not a cable service.
But the agency declined to agree that it is a telecommunications service.
Instead, the commission said, cable-modem service was purely an information
The FCC was hoping that the case would land in the D.C. Circuit.
A cable-industry source said the Ninth Circuit was not expected to be a
hostile forum because the Portland decision noted that the FCC had yet to
classify cable-modem service and the commission had the authority to forbear
from applying common-carrier regulation to high-speed cable data.
The FCC is still pondering whether to apply access rules to cable-modem
service. It's possible that the Ninth Circuit would postpone the case until
after the agency had settled access policies.