December 4, 2003 1:46 PM PST

FCC seeks to overturn cable broadband ruling

The Federal Communications Commission filed a petition Thursday requesting a rehearing in a case that could bring new federal regulations to the cable broadband industry.

The agency submitted the 19-page document to the 9th U.S. Circuit Court of Appeals in the hope that the court would grant a new hearing of its October ruling, which declared that the FCC was wrong to classify cable broadband services as "information services." Cable broadband actually has qualities of both information and "telecommunications" services, that ruling said.

The distinction is critical because the federal government can force telecommunications services to share their high-speed Internet lines with third parties, as dictated by the Telecommunications Act of 1996. Baby Bell phone companies, considered telecommunications services, are regulated this way.

However, cable companies are considered information services and are thus not federally required to share their broadband networks with anyone else.

In Thursday's filing, the FCC argued that it was correct in classifying cable as an information service, sticking to its long-held desire to keep regulation out of the cable industry. The FCC requested that the 9th Circuit grant an en banc hearing for the case, meaning that the court would overturn the original, three-judge ruling and take a fresh look at the case with an 11-judge panel.

The FCC had threatened to appeal the October ruling, but it never stated how it would do so. Its other alternative was to appeal through the U.S. Supreme Court.

The main argument for appeal centers on procedure, according to the petition. The agency claims that the 9th Circuit failed to adopt a procedure required to challenge the FCC's interpretation of its rules. The FCC cited a test based on a previous Supreme Court case called the "Chevron" test, which tells the courts to give deference to the FCC's decisions.

"FCC is complaining that the court didn't give it enough respect," said Matthew Spitzer, dean of the University of Southern California's Gould School of Law. He added that Chevron is more symbolic, like a hand shake before a fight rather than a rule that has any consequence to the 9th Circuit.

The next step is for the 26 circuit judges to determine whether to take the case, according to a court representative. Some judges may recuse themselves from the case, but the remainder will vote to determine whether to go ahead with the en banc panel. In order for the en banc hearing to be granted, a majority of the nonrecused judges must approve it.

If the majority of the judges do not approve, then the FCC can take the case to the Supreme Court.

 

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