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NCTA Takes Aim at Brand X

A lower court disregarded long-established case law when it overturned the Federal Communications Commission in the so-called Brand X case and ordered cable operators to carry rival Internet-service providers over their broadband networks, cable and telecommunications groups told the U.S. Supreme Court Tuesday.  
Court doctrine requires judges to defer to “expert federal agencies” like the FCC when they implement statutes that don’t provide clear direction on all legal questions.

 That so-called Chevron doctrine, named for the plaintiff in the court decision establishing the doctrine, requires courts to defer to federal agencies if the law being administered is unclear and the agency’s interpretation is reasonable.

The main question before the justices is whether the FCC’s “hands-off for now” classification of cable Internet services is reasonable. “The answer is clearly yes,” wrote attorneys for the National Cable & Telecommunications Association.

The justices are scheduled to hear the cable’s industry’s challenge to the lower court’s “open access” mandate this year and opening briefs from NCTA and the FCC were due Tuesday. The FCC’s brief was still being prepared by the Justice Department’s Solicitor General’s office at deadline late Tuesday.

Media activists and ISPs must file briefs in support of the lower court ruling Feb. 22.

The fight over cable Internet access has pitted the cable industry against ISPs like Earthlink and media activists in a series of court battles since 1998. In the last round, a 2003 decision, the federal appeals court in San Francisco struck a blow against operators by ruling that cable Internet service is bound by the same access burdens as telephone companies.

The FCC and the cable industry disagree, saying there’s no obligation to file a telephone-style mandate and the commission may wait and see if an access mandate is warranted by, say, blocking of content on rival web sites by cable operators.

Imposing a mandate now would discourage cable operators from rolling out broadband service, the FCC has argued, one of the priorities of the Michael Powell-led commission. The Telecommunications Industry Association, which represents communications technology producers, agrees. An open access mandate would slow the growth of broadband services and products, TIA said in a “friend of the court” brief.