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Brand X Backers Weigh In

Respondent briefs were due to the Supreme Court Tuesday in the Brand X Internet Services Inc. case.

That case, named after the independent Internet Service Provider of that name, will decide whether or not cable's modem service, or some part of it, is a common carrier service, subject to nondiscriminatory access, or is instead inseparable from its information services and thus immune from that affirmative obligation.

The FCC has concluded it is the latter, ruling that because cable does not offer Internet access service separate from its information services (e-mail, for example), that access service cannot be separately regulated as a common carrier service. It also invoked the government's interest in promoting the widespread roll-out of broadband to support its decision.

If cable's high-speed access was regulable as a common carrier, operators would have to open their high-speed lines to independent Internet service provides at nondiscriminatory prices.

An appeals court reversed that decision in part, citing another court decision at odds with the FCC . The Justice Department then appealed to the high court. One of the Supreme Court's primary functions is to reconcile conflicting appeals court decisions.

Filing jointly Tuesday were ISP's Brand X, EarthLink and the Center for Digital Democracy, who argue that the FCC's assertion that an information service cannot contain within it a regulable telecommunications service is "meritless."

They point out that the FCC itself in another instance suggested that not to separate information service and telecommunications service would allow the regulated entity to deregulate itself by simply bundling its common carrier services with an information service. They also argue that the broad policy goal of advancing the roll-out of broadband by deregulating it controlling not controling in the case, given the fact that the appeals court ruled simply on the terms of the statute not on those broad policy goals.

Also expected to weigh in Tuesday in support of Brand X et. al.were the ACLU, the American Association of Retired People, and the National Association of Regulatory Utility Commissioners, all of whom were expected to file amicus (friend-of-the-court) briefs.