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Friday, December 3, 2004

Supremes to Consider Brand X
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Good news today out of the Supreme Court. The Court has announced it will consider the appeal from the Ninth Circuit's decision holding that cable modem service is a "telecommunications" service subject to public utility-style regulation rather than, as the FCC determined, an "information service" remaining relatively free from regulation.

This will be an important case for two reasons. From the perspective of sound policy, in today's increasingly competitive broadband marketplace, we don't want to have the FCC's hands tied as it tries to keep broadband services, whether provided by cable, telephone, or whatever, from becoming embroiled in the "morass" (Bill Kennard's word) of telephone regulation. Second, as a matter of law, the case may well turn on what the Supremes say about how much deference is due the agency's interpretation of ambiguous statutory provisions. This involves the reach of the famous 1984 Chevon case implicating judicial deference to agency decisions.

No doubt that the classification of cable broadband service (or DSL, for that matter) is not crystal-clear under the definitions in the existing Communications Act. As I have pointed out before, in today's digital environment, the distinction between "telecommunications" and "information" service as it relates to broadband services is quite metaphysical. Since the Communications Act is what it is, when there is true ambiguity such as that presented by Brand X, the Court will do better, as matter of law, if it defers to the metaphysicians over at the Portals concerning the definitional issue, rather than practicing the metaphysician's art themselves.

posted by Randolph May @ 3:24 PM | Cable , Supreme Court

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