Cable Takes Last Swings in Brand X Case


The briefs are in and everything that can be said about National Cable & Telecommunications Association vs. Brand X Internet Services has been said -- multiple times.

The cable industry got in its last words to the Supreme Court Tuesday, just one week before the high court is to hear oral arguments for one hour in a case that could determine whether Internet-service providers like EarthLink Inc. can gain regulated access to cable’s high-speed-data lines.

In the brief, the NCTA defended the Federal Communications Commission’s March 2002 ruling -- later reversed by a federal appeals court -- that cable operators have the right to decide whether ISPs gain access.

The FCC, the NCTA said, was correct in classifying cable-modem service as an unregulated information service, and the lower court was incorrect in holding that cable broadband is a common-carrier platform available to competing ISPs upon request.

The NCTA explained that the provision of high-speed data does not automatically convert cable operators into phone companies with open-access rules applying. Instead, cable would be a common carrier if it held itself out to be one, or if the FCC imposed that classification upon it. But neither of those things has happened, the trade group said.

“It is black-letter law that, without more, firms that decline to hold themselves out as common carriers are not subject to common-carrier duties,” the NCTA said.