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NCTA, Too, Seeks Brand X Review

NCTA, joined by Time Warner, Cox and others, followed the lead of the Justice Department and the FCC yesterday, calling on the Supreme Court to review a Ninth Circuit Court of Appeals ruling, the so-called "Brand X" case -- that the FCC couldn't define cable modems as solely an information service.

Defined as an information service, cable Internet would not be under the same mandated nondiscriminatory access regulations as telecommunications services and so would not have to open its wires to other Internet service providers (ISPs). The FCC's decision was motivated in part by its desire to speed the roll-out of broadband by putting cable modems under a minimal regulatory regime.

In reviewing an earlier case involving a city's ability to make nondiscriminatory ISP access a condition of franchise agreements, however, the appeals court held that cable modem service was a little bit of both information and telecommunications service. Citing its own precedent, the court then invalidated the FCC's declaratory ruling that cable modem service was solely an information service.

NCTA and company argue that the appeals court made a mistake in overruling the FCC's definition, pointing out that the court's own definition came before "the FCC's contrary interpretation of a statute it is charged with administering." They want the court to decide whether an appeal's court's own precedent should trump the decision of, and the judicial deference generally given, the expert agency charged with making such decisions.