Supreme Court Grants Second Modem Case Extension

The Supreme Court has granted the Department of Justice a second 30-day extension to decide whether to back the cable industry’s opposition to a case that could force operators to offer wholesale broadband access to competing high-speed-data providers.

Jane Mago, chief of the Federal Communications Commission’s Office of Strategic Planning & Policy, said here Thursday that the Justice Department’s Office of Solicitor General sought the extension and now has until Aug. 30 to decide whether to join cable in the fight.
Under a previous extension, Justice had until July 29.
Although Mago described the extension as routine, it could signal that an internal battle within the Justice Department on whether to file an appeal with the high court has not been resolved.
Last October, a panel of the 9th U.S. Circuit Court of Appeals declared cable-modem service is partly a telecommunications service. Some in the Justice Department support that ruling, because it would protect Justice’s electronic wiretapping authority under the Communications Assistance for Law Enforcement Act of 1994 (commonly known as CALEA).
Some Justice officials and some Capitol Hill lawmakers fear that if CALEA is inapplicable to e-mail messages, instant messages or voice communications over cable broadband facilities, the technology will become a safe haven for terrorists.
The 9th Circuit’s ruling reversed a March 2002 decision by the FCC that cable modem service as currently provided by cable companies was purely an interstate information service.
Under CALEA, a Justice Department official has said law enforcement does not have authority to order information-service providers to install wiretapping equipment. But CALEA does protect Justice in connection with telecommunications service providers.
The cable industry is planning to appeal the case, Brand X Internet Services v. the FCC, with or without Justice Department support. Cable officials are concerned that as telecommunications service providers, they would be forced to open their lines to competing broadband access providers at regulated wholesale rates. Information service providers do not have to do that under long-standing FCC rules.