Court Challenge to Cable Modem as "Information Service"

The U.S. Ninth Circuit Court of Appeals declined to review a lower court's ruling that had overturned the FCC's classification of cable modem service as an "information service." The case originally arose regarding whether local municipalities could require cable operators to open their networks to other ISPs.



In October 2003, the U.S. Ninth Circuit Court vacated the FCC declaratory ruling that had classified cable modem service as an "information service without a separate offering of a telecommunications service." The FCC promptly appealed the decision. The Ninth Circuit Court of Appeals has now declined to review the lower court's ruling.



The FCC's declaratory ruling, which was issued 15-March-2002, classified cable modem service as an "information service" rather than a "cable service." As an interstate information service, cable modem service would therefore be subject to FCC jurisdiction rather than state or local rules.



FCC Chairman Michael K. Powell expressed disappointment in the decision, saying the Court's failure to address the merits of the FCC's policy would only "prolong uncertainty to the detriment of consumers."



FCC Commissioner Michael Copps applauded the decision, saying "This is a good day for consumers and Internet entrepreneurs. I look forward to the start of a fresh dialogue on broadband service at the FCC."



The National Cable and Telecommunications Association (NCTA), which represents the cable TV industry, said "While we are disappointed with the Ninth Circuit ruling, we will urge the FCC to seek U.S. Supreme Court review. We believe that if and when the Ninth Circuit's decision is given a full substantive review by the Supreme Court, it will be reversed."



EarthLink said "Yesterday's decision by the Ninth Circuit confirms what EarthLink has been saying for over five years now, that cable modem service contains a telecommunications service. As the Court noted in its decision last October, ‘The practical result of such a classification is that cable broadband providers would be required to open their lines to competing ISPs.' Cable modem users deserve choice in high-speed Internet providers. Yesterday's ruling is another step towards finally affording them that choice."http://www.fcc.gov