An ongoing legal battle to decide whether cable modem service should be regulated as a telecommunications service may be headed to the highest court in the land.
On Friday, the U.S. Justice Department's Office of the Solicitor General filed a brief asking the nation's highest court to overturn an October 2003 ruling by the 9th Circuit Court of Appeals. In Brand X Internet Services vs. the Federal Communications Commission, the circuit court ruled that the FCC erred when it designated cable modem offerings as information services, and therefore not subject to the same open access requirements placed on other telecommunications services - most notably that of rival digital subscriber line providers. If allowed to stand, that could force MSOs to share their broadband cable modem networks with competitors at rates regulated by the FCC.
In March, the circuit court denied an FCC petition to rehear the case, leaving only the U.S. Supreme Court as an avenue of appeal.
In Friday's filing, acting Solicitor General Paul Clement argued that if the decision stands, the FCC will be forced to regulate cable modem service even though the commission has concluded "that such regulation is inconsistent with, and would directly threaten, the important federal policy of promoting access to these services."
But it still remains to be seen if the high court will take up the matter. Competitive broadband service provider EarthLink Inc., which could stand to benefit if the ruling stands, issued a statement saying the appeal to the U.S. Supreme Court was ill advised.
"They are just delaying the inevitable," said Dave Baker, EarthLink's vice president of law and public policy. "Instead of fighting to protect cable monopolies, the FCC should recognize that cable modem and other broadband users deserve choice in high-speed Internet providers. We are confident that the Supreme Court will recognize what the Ninth Circuit has ruled several times - that cable modem service contains a telecommunications service."