NCTA, Ops Fight Court’s Modem Ruling

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The National Cable & Telecommunications Association and three of the nation’s largest operators have asked the U.S. Court of Appeals for the Ninth Circuit in San Francisco to revisit an October finding that cable modems deliver a telecommunications service.

The petitioners -- including Time Warner Inc., Time Warner Cable, Charter Communications Inc. and Cox Communications Inc. -- believe the court, notorious for its cable-unfriendly rulings, is erring by sticking to its own legal definition of high-speed-data services.

The appeals court legally defined cable's high-speed-data product as a telecommunications service in 2000 as part of its ruling in the open-access/forced-access dispute between then-AT&T Broadband and the city of Portland, Ore.

Since that regional precedent was set, the Federal Communications Commission issued a declaratory ruling defining high-speed-data delivery as an information service. But in a court case this May, Brand X Internet Services vs. FCC, the Appeals Court again cited its own finding that modems are telecommunications services.

In the en banc rehearing request, filed Dec. 4, the NCTA and operators noted that other federal courts have found that when a federal policy such as the Cable Act is ambiguous on a topic, interpretation falls to appropriate federal agencies. In this case, it should be the FCC that sets a national policy, they argued.

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