Providing high-speed Internet access should not trigger government mandates designed to open cable networks to all data competitors, the cable industry said Tuesday in a filing with the U.S. Supreme Court.
The National Cable & Telecommunications Association, joined by three major cable companies, asked the high court to shield cable-modem service from forced-access mandates and back policies adopted by the Federal Communications Commission in March 2002.
But those FCC policies are now in doubt after the U.S. Court of Appeals for the Ninth Circuit determined that open-access rules apply to cable’s data service unless the Federal Communications Commission uses its forbearance authority to remove them.
The Supreme Court has agreed to review the Ninth Circuit’s decision. The case is NCTA, et al. vs. Brand X Internet Services, et al. The NCTA has the formal support of the Department of Justice, which was also scheduled to file a brief Tuesday.
In a 37-page brief, the NCTA said the Ninth Circuit should have backed the FCC’s conclusion that cable-modem service is an unregulated information service, mainly because the agency deserved deference when interpreting imprecise statutory language.
“Applying that framework, the FCC’s decision readily passed muster. That judgment of the court of appeals should therefore be reversed,” the NCTA said in a brief supported by Time Warner Cable, Cox Communications Inc. and Charter Communications Inc.
The Ninth Circuit found that cable also offered a telecommunications service, triggering the access requirements.
EarthLink Inc., other Internet-service providers and consumer groups support the Ninth Circuit ruling, viewing it as a mechanism for the lease of broadband capacity from cable companies at regulated rates under rules that currently apply to Verizon Communications, BellSouth Corp. and other phone companies.
Those open-access policies were fundamental to America Online Inc.’s stunning growth as an on-ramp to the Internet over dial-up phone connections.
But AOL’s corporate parent, Time Warner Inc., is also urging the Supreme Court to allow the FCC to protect cable companies from sharing their data networks with rival ISPs.