9th Circuit Overturns FCC's Cable Modem Decision

Decaffeinated Jedi writes "According to this Washington Post article, a federal appeals court in California has overturned a Federal Communications Commission decision that many smaller companies claim has kept them locked out of the high-speed cable Internet business. As Chris Murry of Consumers Union (publisher of Consumer Reports) notes, 'Many consumers hate their cable companies' privacy policies and their failure to deal with spam effectively. Giving consumers a choice of Internet service providers would open the door to more competition, and let people choose services with better privacy and less spam.' As noted in News.com coverage of this decision, however, FCC chairman Michael Powell plans to appeal the ruling." Reader rednaxela provides some more insight (and a link to the ruling itself), below.

rednaxela writes "The 9th Circuit today issued a decision overturning the FCC's classification of cable modem service as an 'information service,' stating instead that cable modem service consists of both an 'information service' *and* a 'telecommunications service.' Telecommunications services are classified under Title II of the Telecommunications Act of 1996, and are subject to all kinds of regulation. Information Services are classified under Title I, and are largely free from regulation. If upheld, this decision will likely require cable modem providers to open their networks to competing ISPs. Further, this is likely to derail, or at least complicate, the FCC's plans to classify DSL service (which is provided primarily over incumbent telco facilities) as a unified 'information service." Bottom line - the 9th Circuit's decision may well have preserved open access for competing ISPs on all forms of wireline networks.' Here is the 9th Circuit's ruling (PDF).

Comments

Michael Powell ... trying to help?

[zangdesign]

Holy cow! I thought this guy was evil incarnate. So now, it looks like he's evil incarnate, who's trying to make himself look good.

Re:9th Circuit

[Quino]

They covered this in NPR; it's a myth that the 9th circuit gets a higher % overturned. It happens to be one of the busiest circuits (I think *the* busiest), so more cases go through and more cases later get overturned. But their % of rulings later overturned is no higher than other courts.

Re:cool!

[Steffan]

> maybe now the most-technologically-advanced
> United States will catch up with third-world
> South Korea in broadband!!

Um, I don't think you can really call South Korea a 'third-world' country, especially since they're number 12 in the world in GDP, just ahead of Canada.

Re:No need to worry...

[anagama]

"The pundits ... are looking at number of cases selected by the Supreme Court, not percentages"

This is a very good point but maybe I think it ought to be said more bluntly.

The 75% overturn rate is NOT 75% of the cases decided by 9th circuit cases. It is 75% of those cases the Supreme Court decides to review.

If you lose in the 9th, you get to ask the Supreme Court to review the case. If the SC refuses, it is a silent affirmation. In fact, it is even used in citations - if you see "cert. denied" after a cite, it means it was appealed to the SC and rejected (implying that the case was decided just fine at the circuit level).

Now, the SC is busy - it isn't going to spend its time patting the circuits on the back and saying "nice job". Instead, when a case is accepted for review by the SC, it is going to be a case in which the Court has some serious questions/doubts. It should therefor being pretty unsurprising that the cases accepted for review (which is far below the number appealed), stand a good chance of being overturned.

According the SC, they receive 7000 cases per year. They only write 80-90 opinions, and decide an additional 50-60 cases. At most, 150 cases are actually decided. This is 2.1% of the appeals to the court. Assuming 100% are overturned, the Circuits get it right 98 times in a hundred. If only 50% of a circuits decisions were overturned, they would get it right 99 times in a hundred. I personally doubt that the difference is significant. So you see, this "most overturned court" thing, aside from being wrong, is one of those statistics/damn lies things.

Re:not to mention "compliance fees"

[homer_ca]

If you're talking about the Presubscribed Interexchange Carrier Charge (PICC), it's not a tax. It was a payment mandated by the FCC that the long distance companies pay to the local phone companies, and it was set at about $1 per month for residence lines. Lots of long distance carriers charged up to $5 per month which is pure profiteering. It was really just a cost of doing business and they have no business charging you extra for that any more than they could charge a line item for the CEO's golden bidet. But they probably did it so they could say "don't blame us, it's a tax that the FCC forces us to collect". Which is a lie. I say "was" because that charge was eliminated for most phone lines in 2000. So if they're still collecting a "National Access Fee" in year 2003, consider it padding for the bill so they can offer you those low low long distance rates.