EarthLink Opposes NCTA Stay Request

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EarthLink Inc. is opposed to blocking a favorable court decision on broadband regulation from taking effect while the cable industry attempts to overturn it in the U.S. Supreme Court.

EarthLink, one of the country's largest Internet-service providers, is relying on a decision last October by a panel of the U.S. Court of Appeals for the Ninth Circuit to force its way onto high-speed-data platforms built by cable companies.

"Economic injury accrues to EarthLink each day that the mandate in this case does not issue," EarthLink said in its April 6 filing with the Ninth Circuit.

EarthLink and other ISPs challenged the FCC's classification of cable-modem service as an unregulated information service.

The Ninth Circuit -- relying on a 2000 cable-modem case decided by three of its judges -- held that cable broadband was also a telecommunications service, potentially requiring providers to comply with federal open-access mandates for ISPs.

On March 31, the Ninth Circuit refused rehearing, which meant that the decision was to take effect April 7. However, a stay request filed by the National Cable & Telecommunications Association April 5 automatically postponed the effective date of the ruling.

In opposing the NCTA's stay request, EarthLink said the cable industry failed to meet its legal burden for such relief. The company urged the Ninth Circuit to instruct the cable industry to seek a stay from the Supreme Court when it filed its appeal, which is due no later than June 29.

Meanwhile, the FCC filed a motion with the Ninth Circuit supporting the NCTA's stay request. But the agency disclosed that it had not reached agreement with U.S. Solicitor General Theodore Olson on filing an appeal with the U.S. Supreme Court.

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