Five local govt. organizations have sought an en banc rehearing ’...
Five local govt. organizations have sought an en banc rehearing “on a clear slate” of a 9th U.S. Appeals Court, San Francisco, order vacating the FCC’s declaratory ruling that cable modem service was an interstate information service (CD Oct…
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7 p1). In overturning the FCC’s order, the court had said it was bound by its earlier conclusion in AT&T v. Portland that cable-delivered Internet service contained both information service and telecom components. Local govts. said they had argued before a 3-judge 9th Circuit panel that as an information service made available generally to all subscribers over a cable system, cable modem service was a cable service. That argument, they said, was based on language in several provisions of the Telecom Act, the legislative history of the cable service definition and prior FCC decisions. But the court didn’t address that argument, saying it felt bound by an earlier panel’s decision in AT&T v. Portland, that cable modem service wasn’t a cable service. The cable services argument wasn’t presented in Portland because both parties assumed cable modem service was a cable service, they said, so they never briefed that issue. The Portland panel didn’t ask for additional briefing before deciding the case on grounds not raised by the parties, they said. “The results of these peculiar circumstances are that, although 2 panels of this court have now ruled that cable modem is not a cable service, neither has even once addressed the merits of the petitioners’ arguments that it is a cable service,” they said. The en banc rehearing petition was filed by the National Assn. Telecom Officers & Advisors (NATOA), National League of Cities, U.S. Conference of Mayors, National Assn. of Counties and the Tex. Coalition of Cities for Utility Issues.