NCTA Backs FCC in Cable-Modem Case

A federal court should not overturn the Federal Communications Commission's finding that cable-modem service is an interstate information service traditionally exempt from heavy regulation, the National Cable & Telecommunications Association said in a court filing this week.

A panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco is to determine whether the FCC acted lawfully in declining to classify cable-modem service a telecommunications service, which would, in theory, have exposed cable operators to common-carrier regulation.

In a brief filed Monday, the NCTA said the FCC decision represented an interpretation of an ambiguous law that deserved judicial deference. The trade group also argued that a prior holding by the Ninth Circuit that cable-modem service was in part a telecommunications service was not a binding precedent requiring reversal of the FCC.

EarthLink Inc. and other Internet-service providers claimed that cable-modem service met the legal definition of a telecommunications service, compelling cable-modem providers to make transmission capacity available to unaffiliated Internet-access providers.

When the FCC debated the matter, the NCTA urged the FCC to classify cable-modem service a cable service, which would have precluded common-carrier regulation but continued to require MSOs to pay local franchise fees on cable-modem revenue.

Once the FCC announced the information-service decision in March, cable companies refused to collect franchise fees on modem revenue.

Local governments are urging the Ninth Circuit to declare cable-modem service a cable service in order to regain their authority to collect millions of dollars per year in modem franchise fees.

The NCTA filed the brief on behalf of AOL Time Warner Inc., Time Warner Cable, Charter Communications Inc. and Cox Communications Inc.