The cable industry announced its intention to file an appeal with the Supreme Court on the so-called "Brand X" case coming out of the 9th Circuit Court of Appeals, which held that the courts can supercede (actually, in this case even worse, precede) the FCC in defining cable modem service as a "telecommunications service." And that definition becomes law regardless of what the FCC subsequently decides. Hopefully the FCC and the Justice Department will also appeal this case, since it has far greater implications than just cable. A bit of history to understand why this is so important. Originally, a suit was brought in the 9th Circuit (the "Portland" case) challenging the regulatory status of cable modem service. A locality wanted to regulate that service and the FCC had yet to officially classify it. The lower court decided, and was upheld on Appeal, that cable modem service fit under the definition of "telecommunications service" as well as "information service" under the Communications Act. It made that decision even though the FCC had asked that it not rule, since the Commission was in the middle of deliberations trying to determine the appropriate classification, which is the job of the Commission. The initial interpretation of the Communications Act is generally left to the agency in charge of enforcing that Act. Challenges to its decisions usually come after, not before it decides. The Commission ultimately decided that cable modem service, for lots of policy reasons, should be considered an "information service" – not subject to common carrier regulation, as opposed to a "telecommunications service," which could be. The "Brand X" case challenged the Commission’s decision, and did so, by chance, in the same Circuit that had decided the earlier "Portland" case. Here’s where things get screwy. The 9th Circuit has an internal rule that says it must follow its own prior precedents – in this case the "Portland" case conclusion that cable modem service is, in part, a "telecommunications service" under the Communications Act, even though the FCC, which is charged with the initial determination of such interpretations, had not yet announced its decision when the "Portland" case was written. The Appeals Court did not rule on the merits of whether the FCC’s decision made sense or not, it just said, well, we have already had a case like this, and we decided it, and we have to follow that decision! So, we have a situation where the actual decision the FCC made has never really been ruled wrong on its merits. It was ruled wrong because of timing! It followed, rather than preceded, a judge’s decision. If that concept stands, think about the implications. Forget cable modem service for a second. Just imagine what this could mean: a race to the courthouse on just about any issue imaginable before a federal agency. If you can get the courts to rule before the agency that is supposed to be empowered to do the job of interpreting the law it is enforcing, then the courts take over from the agencies the job of interpreting congressional intent! This is a disastrous idea. It subverts our whole system of rational rulemaking and reasoned regulation and reduces it to judges looking at very narrow, specific case situations. Everyone should be appealing this case to the Supreme Court. If it is allowed to stand, it will turn the regulatory process on its head. The ultimate result will be repeated madcap races to the courthouse, and lots of inadvertent and possibly unintended policy decisions.

The Daily

Subscribe

Supply Chain: Fiber Demand Skyrockets in Age of COVID

Broadband and cable operator are running into supply chain problems as they embark on construction—particularly for fiber.

Read the Full Issue
The Skinny is delivered on Tuesday and focuses on the cable profession. You'll stay in the know on the headlines, topics and special issues you value most. Sign Up