FCC Seeks To Overturn 9th Circuit Ruling On Cable Broadband

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December 05, 2003 (8:00 AM EST)

FCC Seeks To Overturn 9th Circuit Ruling On Cable Broadband

The FCC has filed a petition with the U. S. Court of Appeals for the 9th Circuit, seeking to overturn the court's earlier ruling that cable broadband in part provides telecommunications services. The court's decision has been widely interpreted as an order to cable providers to open their lines to competing Internet providers.

In its Thursday petition, the FCC maintains that its earlier definition of cable as an unregulated information service was correct and requested the court to re-examine the issue with an expanded number of judges. The FCC could take the case to the Supreme Court, and most observers believe that would be the next step for the FCC, if it is unsuccessful in the 9th Circuit. If cable broadband is ruled to be an information service--as the FCC wishes-it would not be heavily regulated or taxed.

FCC Chairman Michael Powell has been crystal clear on his intentions for cable--and telephonic--broadband, complaining that the 9th Circuit's decision will throw "a monkey wrench into the FCC's efforts to develop a vitally important national broadband policy." In addition, Powell, a Republican, argues that the telephone companies supplying DSL broadband should not be required to open their lines to competing Web providers. The Democratic FCC commissioners oppose Powell on the issue.

For now, the FCC is moving its appeal forward on procedural grounds--it is hoping that different and enlarged panels of judges will reverse the three-judge Court of Appeals' earlier decision. The current appeal is based largely on a technicality that the FCC believes is important: that the court failed to implement relatively arcane appellate procedures involving FCC rules and appeals.

In addition to receiving support from the country's cable providers, the FCC is being backed by the major phone companies. There are some deeper economic-philosophy issues involved, too. Powell favors restricting broadband lines--both cable and DSL--to original providers, claiming that the two technologies would compete vigorously with each other to deliver better and cheaper services to the public. Independent broadband providers, however, maintain that the public can be better served by more open competition, created when cable and DSL broadband lines are available to more than one supplier.