EarthLink: Reject Modem Case


EarthLink Inc. is asking the U.S. Supreme Court to reject a Bush administration appeal of a case that voided an attempt by federal regulators to shield high-speed cable data services from open-access rules that apply to the Baby Bell phone companies’ digital-subscriber-line services.

EarthLink -- an Atlanta-based Internet-service provider with 5.2 million subscribers -- is defending a decision by the U.S. Court of Appeals for the Ninth Circuit to overturn a ruling by the Federal Communications Commission in March 2002 that sought to shield cable from having to comply with so-called open-access rules.

The Department of Justice and the National Cable & Telecommunications Association petitioned the Supreme Court to overrule the NinthCircuit, but EarthLink defended the lower-court ruling in a filing at the Supreme Court Sept. 30.

“There is no issue here that warrants this court’s intervention, and the petitions should be denied,” EarthLink said in a 30-page brief.

The case is Brand X Internet Services vs. the Federal Communications Commission.

Brand X, a small California ISP, and the Center for Digital Democracy filed a joint petition agreeing with EarthLink that the case did not merit high-court review.

If the Supreme Court rejects the case, EarthLink and other ISPs would be in position to demand access to cable-modem facilities on terms and conditions no worse than those cable-system operators offer themselves.

Except for Time Warner Cable, no cable operator has broadly opened its high-speed lines to rival ISPs, and the industry has fought open-access rules for years, claiming that forced access would stifle investment in the technology.