Supreme Court Will Review Ninth Circuit's Brand X Decision
Today, the U.S. Supreme Court announced that it granted certiorari in National Cable & Telecommunications Association, et al. v. Brand X Internet Services and will review the Ninth Circuit’s October 2003 decision reversing the Federal Communications Commission’s classification of the delivery of high-speed Internet service over a cable system (“cable modem service”) as an interstate information service under the federal Communications Act. In that opinion the Ninth Circuit affirmed the FCC’s determination that cable modem service was not a “cable service,” but vacated the FCC’s conclusion that cable modem service was entirely an “information service.” The panel opined instead that, under pre-existing Ninth Circuit precedent, cable modem service was a telecommunications service and remanded the matter to the FCC for further proceedings.
The cable industry and the government then asked the Ninth Circuit to rehear the case en banc. The Ninth Circuit denied those petitions last April. After obtaining a stay of the mandate, which effectively delayed the effect of the Ninth Circuit’s decision, the cable industry and the government separately petitioned for certiorari in the Supreme Court. A group of local franchising authorities conditionally cross-petitioned for certiorari seeking review of that aspect of the Ninth Circuit’s decision holding that cable modem service was not a cable service. After considering the petitions and cross-petition at a conference today, the Supreme Court released an order granting the cable industry’s and government’s petitions. There was no order today on the LFAs’ separate cross-petition, so most expect that the order denying their petition will be released Monday.
Briefs will be due in January and February, with argument likely at the end of March. We have previously provided a detailed summary of the FCC’s and Ninth Circuit’s decisions, along with an overview of the regulatory implications of the case, in our updates of March 14, 2002, October 7, 2003 and April 2, 2004. Please contact us with any questions you may have regarding this latest development.