CABLE MODEM IS CABLE SERVICE, CITIES SAY IN COURT BRIEF
Cable modem service is cable service within meaning of Communications Act and FCC was wrong in concluding otherwise in its March declaratory ruling, coalition of local govt. organizations said Thurs. in their opening brief filed in 9th U.S. Appeals Court, San Francisco. Alliance of Local Govt. Officials Against Preemption (ALOAP) brief challenges FCC’s classification of cable modem service as interstate information service, taking it outside the scope of Title VI of the Act. Cities said that at stake in appeal was estimated $300 million per year in cable franchise fees, a figure that was likely to increase in the years ahead. Local govts. couldn’t afford that in light of current economy and increasing costs being incurred for homeland security, ALOAP said.
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ALOAP said only way that plain language of Act, legislative history of definition of cable service, 1998 Internet Tax Freedom Act and other FCC decisions could be read together in “a coherent, consistent manner” was to classify cable modem service as cable service. FCC’s ruling, in contrast, improperly seeks to “rewrite the law to elevate the policy preferences of an unelected FCC over those of Congress as expressed in the Communications Act,” it said. FCC’s ruling focuses “myopically” on cable services definition in Sec. 522(6) to exclusion of any of many other provisions of the Cable Act, it said: “But that Act elsewhere refers to ‘information services’ offered over a cable system are indeed a cable service.” ALOAP said it agreed with FCC’s conclusion that cable modem was information service but “strenuously” disagreed with its finding that it’s not also a cable service. FCC’s conclusion that cable modem isn’t cable service because “transmission” in Sec. 556(A) connotes “control” over content is “doubly flawed,” ALOAP said. “Even assuming transmission requires cable operators to possess some control over cable modem content, it said, they “clearly possess such control, as even the FCC has elsewhere, and inconsistently, recognized.”
Ninth Circuit’s ruling in AT&T v Portland that concluded that the @Home service wasn’t a cable service can’t serve as basis for upholding FCC’s declaratory ruling, ALOAP said. Both parties in that case proceeded on the assumption that cable modem service at issue was cable service and therefore didn’t brief regulatory classification issue, it said. As result, court didn’t have benefit of arguments now before it as to why cable modem service was cable service, it said. ALOAP is composed of National League of Cities, U.S. Conference of Mayors, National Assn. of Counties, International Municipal Lawyers Assn. and National Assn. of Telecom Officers & Advisors.
Earthlink, which also was petitioner, said in its brief that 9th Circuit already had held that transmission underlying Internet access provided by cable companies was telecom service under Communications Act. FCC’s interpretation conflicts “with the plain language” of the Act, Earthlink said, and “depends entirely on the insertion of additional words into the statute, something that the Commission has no authority to do.” FCC’s decision to exempt cable companies that used their own facilities to deliver Internet access service to public from rules established in Computer II on ground that those rules didn’t apply to transmission over cable facilities contradicts Commission precedent and Act, Earthlink said.
Brief filed by Media Access Project on behalf of Consumer Federation of America (CFA), Consumers Union (CU) and Center for Digital Democracy (CDD), said FCC’s classification of cable modem as “information service,” rather than as telecom service or cable service, was “arbitrary and capricious.” MAP said Internet access included common carriage, which is telecom service component, and that FCC went beyond its jurisdiction by attempting to classify Internet access as information service without common carriage component. MAP also said FCC failed to consider whether its action would impede “the marketplace of ideas,” and said failing to do so was inconsistent with the public interest standard of the Communications Act. “The Commission’s action inexplicably departed from decades of agency decisions construing the public interest standard as requiring the Commission to ensure that its decisions promote the goals of the First Amendment, including its recent holdings that the obligation to promote diversity of voices extends to actions affecting the Internet,” MAP told court.
FCC, in taking action, has endangered free speech rights of citizens, MAP said, and what’s more it chose classification that is the least friendly to First Amendment principles. “The Internet flourished into the medium Americans know today over telephone lines regulated as common carriers. These lines were not allowed to discriminate on content,” MAP said in news release. It said common carriage was most compatible with First Amendment in this instance.
FCC’s holding that transmission component of cable modem service is unregulated information service is wrong as matter of law, said filing by Brand X Internet Services. Ninth Circuit already had held that to extent that cable company provided it subscribers Internet transmission over its cable facility, it was providing telecom service, it said, and FCC was bound by that ruling. “Allowing common carriers to avoid their common carriage obligations by the artifice of bundling common carrier transmission service with unregulated information service… would circumvent the statutory scheme, a point the FCC has previously made, but now eschews without reasoned explanation,” Brand X said.