‘Brand X’ Case Was So 2004: FCC’s Schlick Backs New Views On Cable-Modem Regulations


Austin Schlick, the general
counsel at the Federal Communications
Commission, at the direction of Democratic
FCC chairman Julius Genachowski,
has taken the lead in buttressing the FCC’s
argument that it can classify the transmission
component of broadband as a commoncarrier
service, separate from the content

The task certainly appears to require him
to move 180 degrees away from the arguments
the agency made when he was acting
general counsel for the FCC, according to a
copy of the reply brief in the Brand X case.
That’s the case in which the U.S. Supreme
Court upheld the FCC’s decision not to apply
common-carrier regulations to cablemodem

“The FCC’s view that a provider of cable
modem service has made an ‘offering’ of
only a single, integrated information service
is consistent with settled understanding
of the Communications Act,” Schlick and
Paul Clement wrote on behalf of the Justice

And from the table of contents of the brief:
“Under long-settled standards, cable-modem
service is not a common-carrier service under
the Communications Act.”

Then there is this from the FCC’s 2004 petition
asking the U.S. Supreme Court to hear
the case, a brief on which Schlick was deputy
general counsel: “In classifying cable modem
service as an information service under the
Communications Act, the FCC was guided
by its determination that a ‘minimal regulatory
environment’ will most effectively
achieve the federal policy of “encourag[ing]
the ubiquitous availability of broadband to
all Americans.”

That was years ago, in a Republicancontrolled
galaxy far, far away. The general
counsel’s job then was to support the FCC’s
finding that “cable modem service is an ‘information
service,’ without a separately
regulated telecommunications service component.”

Today, Schlick must argue that broadband
service can be bifurcated for the sake
of broadband deployment — as well as regulatory

He says Brand X actually supports, not undercuts,
the new stance.

“What we argued [successfully] in the
Brand X
case,” Schlick told reporters about
the apparent turnabout, “was that classification of information services is an area
that Congress delegated to the FCC, and
that the FCC has broad authority to reach,
which was the information services classification” — the view of what, at the time, was
a Republican FCC majority. “It is that success
that provides legal foundation for, we
believe, a successful reclassification” if that
is ultimately supported by “the facts and the

The current facts and new policy, that is.

Sharon Springs, N.Y.,
Finally Gets a Glimpse
Of ‘Fabulous’ Series

Planet Green chief Laura Michalchyshyn hopes
new series The Fabulous Beekman Boys helps
change the perception of her Discovery-owned
network from earnest environmentalist to entertaining
storyteller. She may have passed a first
test by impressing a tough audience on May 22,
when the series had a world premiere screening
at the K-12 public school in Sharon Springs, N.Y.

The show is about two New York City men, Josh
Kilmer-Purcell and Brent Ridge, who buy a farm
in that upstate town, about 50 miles west of Albany.
There, they herd goats for cheese, soap and
other organic products under the “Beekman 1802”
brand. Oh, and they are a gay couple: Kilmer-Purcell
was a drag queen and ad executive; Ridge was a
vice president at Martha Stewart Living.

The locals have been accepting — but more
than a little curious about how they and the
townsfolk will come across in “a reality-TV series,”
Michalchyshyn said, bending a sneer into the
term. “They wanted to see the episodes.”

Even the town’s three restaurants closed while
residents watched the first two shows in the
packed auditorium. Their reaction? “We got a
standing ovation,” Michalchyshyn said.

The rest of the world gets a first peek on Planet
Green on Wednesday, June 19, at 9 p.m.