Whether Internet service providers should be allowed to sell broadband over cable television system lines will be considered by the U.S. Supreme Court, the justices announced December 3.
The question is whether cable-based broadband should be classified telecommunications and made subject to Federal Communications Commission rules telephone companies must follow, including and especially allowing access to independent ISPs.
The 9th U.S. Circuit Court of Appeals had revered an FCC regulation from March 2002 which exempted cable companies from rules forcing telephone companies to share their networks. The FCC held that high-speed Internet service over cable lines was just an information service making it different than telephony as most understand it.
FCC chairman Michael Powell applauded the Supremes for taking the case.
“High-speed Internet connections are not telephones," Powell said in a statement issued shortly after the high court announcement, "and I’m glad the Supreme Court has agreed to review the 9th Circuit’s ruling that they are.
"The 9th Circuit’s decision would have grave consequences for the future and availability of high-speed Internet connections in this country," Powell continued. "As the Commission is uniquely charged with the task of promoting the deployment of such advanced services to the public, we look forward to our opportunity to present our case before the high court.”
The FCC had said when passing the original 2002 rule that it was needed to make room for more broadband investment. And, indeed, cable companies have invested billions in upgrading their networks. The commission was joined by the National Cable & Telecommunications Association in appealing the 9th Circuit Court ruling, saying an earlier Supreme Court ruling – from 1984 – required lower courts to defer to a federal agency's "expertise" in choosing policy.
Some Internet service providers and consumer groups, however, say the FCC rule stood athwart competition and threatened a possibility of higher rates, especially with independent ISPs losing customers to cable and larger telephone companies or going out of business entirely.
NCTA president Robert Sachs said his group was pleased by the coming Supreme Court review, adding the group is optimistic the Court will uphold the FCC.
"Cable modem service is an interstate information service, fostering a deregulatory environment for cable high-speed Internet access," Sachs said in his own statement. "Establishing a deregulatory environment for cable modem service is critical to the universal deployment in the U.S. of broadband services, including emerging services such as Voice over Internet Protocol service.
"This case presents a fundamental question of communications law, carefully decided by the FCC and then overturned by a circuit court that simply ignored what the agency had done, refusing to accord the FCC the deference Supreme Court precedent requires," he continued. "Classifying cable modem service as an interstate information service, as the FCC did, puts this innovative service on the right deregulatory path.”
