FCC: Court Exceeded Authority in Cable-Modem Case


The Federal Communications Commission Thursday asked the full complement of the San Francisco federal appeals court to rehear a case that led a smaller three-judge panel of the court to throw out the FCC’s "hands-off" policy towards access to cable Internet service.

The FCC argued that the smaller panel ignored an established legal standard that gives federal agencies the right to interpret statute as they see fit when a law is ambiguous.

On Oct. 6, the San Francisco panel reversed the agency’s ruling that cable modem service is not a "telecommunications service." If the panel’s decision stands, cable companies must carry competing Internet providers on their broadband networks. The FCC says the cable modem business is an "information service" giving the agency authority—but not the obligation—to impose access conditions on cable Internet operations.

So far, the commission has refused to impose access conditions because it views the service as too nascent to warrant such regulation. The October ruling found that the FCC improperly ignored the court’s 2000 decision declaring cable modems to be a telecommunications service bound by telephone-style access rules.

Thursday, the FCC said the Supreme Court’s so-called 1984 "Chevron doctrine" gives it authority to interpret the 1996 law on cable Internet service regardless of outstanding court decisions. "If the statue itself does not unambiguously foreclose the FCC’s interpretation, and if that interpretation is reasonable, then the commission is free to adopt that reading of the statute, even if it differs from the views expressed" in the 2000 court case.