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Supreme Court Will Consider Cable Broadband Access

(December 6, 2004) - In a case with huge implications for free expression and open access to the Internet, the Supreme Court agreed last week to review an appeals court ruling that would require cable companies to open their broadband Internet lines to competitors.

Federal Communications Commission v. Brand X Internet Services, et al., is a challenge to an FCC decision categorizing cable broadband as an "information service" rather than a "telecommunications service." If it is considered an information service, the cable industry's broadband business would be free of regulation and could monopolize broadband access in all the localities where the cable company holds a franchise. If it is considered a telecommunications service, broadband sellers would have to allow competitors to use the same cable conduit, so that consumers would have a choice of Internet Service Providers, as they do for dial-up and DSL access.

Competition would mean not only lower prices for consumers, but more choice of information online. As the ACLU explained in a friend-of-the-court brief to the Court of Appeals in this case:

The hard fact is that the top five cable companies in the U.S. control 75 percent of the cable market nationwide. If the government does not require these companies to open access via their cable systems to other ISPs, these five cable companies will soon effectively control the Internet as well. ...A cable ISP may redirect users away from competitor content (or other content that the ISP does not want a user to see) with aggregation pages, outright blocking of content, and redirection.1

The FCC had ruled that since cable companies are information services for purposes of the programming they provide, they must be information services for purposes of broadband connections as well. The Court of Appeals for the Ninth Circuit, however, agreed with those challenging the FCC decision - the Center for Digital Democracy and independent ISPs like Brand X and Earthlink - and ruled that cable companies are hybrids - information providers for some purposes and telecommunications services when they sell broadband access.

The Court of Appeals had already decided this issue in 2000, and chose to follow that precedent rather than "deferring" to the FCC's expertise in matters of communications regulation. The main basis of the FCC's and the cable industry's petition to the Supreme Court was that the appeals court should have deferred. The challengers counter that this is a clear question of interpreting the communications law - not the kind of technical decision on which courts need to defer to administrative agencies.

It's possible that the Supreme Court's decision, which will come sometime next year, might simply resolve this issue of deference to the FCC, without reaching the free expression and open-access arguments that are at the heart of the case.

FCC v. Brand X Internet Services (S.Ct. No. 04-281) was consolidated with the industry's separate petition for review of the Ninth Circuit decision, National Cable & Telecommunications Association v. Brand X Internet Services (S.Ct. No. 04-277). The Ninth Circuit decision is found at 345 F.3d 1120 (2003).

Update: On June 28, 2005, the Supreme Court reversed the Ninth Circuit decision and upheld the FCC's ruling that cable broadband providers are information services only. See "Two Defeats - and a Silver Lining."

1. Brief of Amicus Curiae American Civil Liberties Union and ACLU of Oregon in Brand X Internet Services v. FCC, No. 02-70518 (9th Cir. 2002).