The FCC and the Justice Department have asked the Supreme Court to reverse the so-called "brand X" San Francisco appeals court ruling that would require cable companies to open their high-speed internet access platforms to competition internet service providers
The FCC had vowed to fight the ruling when it was first issued in January 2003, and National Cable & Telecommunications Association President Robert Sachs had predicted it would not stand. The FCC had classified cable internet service as an information service thus keeping cable free from regulation as a telecommunications provider.
"This is about ensuring that high-speed Internet connections aren’t treated like what they’re not: telephones," said FCC Chairman Michael Powell. "A successful appeal of this case would ultimately mean lower prices and better service for American consumers. Applying taxes, regulations and concepts from a century ago to today’s cutting-edge services will only stifle innovation and competition."Monday, Sachs was also praising the move, saying that the ruling, if affirmed, would impair the rollout of cable modem service. Activists and Web service providers argued that cable companies restrict the types of Internet content and services consumers receive and should be forced to lease capacity to rivals.Consumer groups were quick to criticize the Bush Administration over the appeal: "This is another dark day for competition and consumers in one of the most vital sectors of our economy," said Consumer Federation of America Research Director Mark Cooper.
The San Francisco-based appeals court threw out a 2002 FCC decision declaring that the federal government is not obligated to open up cable broadband platforms the way telephone companies must for their high-speed digital subscriber lines.
The court said its decision two years earlier that cable-modem service is, in fact, bound by telephone-style access requirements was improperly ignored by the FCC when it claimed the right, but not the obligation, to impose open-access rules.
Since then, the FCC policy has been to wait and see if cable companies use control over their platform to block Web users' access to rival content before issuing any mandate.