Ninth Circuit Stays Effective Date of its Decision in Brand X Vacating FCC's Cable

On Friday, April 9, 2004, the United States Court of Appeals for the Ninth Circuit stayed the effective date of its decision in Brand X Internet Service. v. FCC pending further review by the United States Supreme Court. The FCC, Department of Justice, and the cable industry all asked the Court to stay the effect of its Oct. 6, 2003, decision, in which it vacated important aspects of the FCC’s regulatory classification of high-speed Internet service delivered over a cable system. For a full analysis of that Oct. 6, 2003, decision, please refer to our Update dated Oct. 7, 2003.

The stay of the Court’s decision means that the Brand X is not effective at least until the Supreme Court issues a final order on appeal. The cable industry will ask the Supreme Court to hear the case. Because the Supreme Court has discretion not to accept the case for further review, the stay could end if the Court denies review, which could happen as early as the fall of 2004. In the event the Supreme Court agrees to further review, then the stay of Brand X will remain in place until the Supreme Court issues a final decision, which would not likely occur until late 2005, and possibly early 2006.

Please contact us with any questions you might have on this latest development in the Brand X litigation.