Ninth Circuit Reverses FCC and holds cable Internet service is both a telecommunications and an information service

Today, October 6, 2003, the Ninth Circuit Court of Appeals issued its decision in Brand X Internet Services v. FCC, reversing the FCC's order classifying cable Internet service as an "information service."  The Court held it was bound by its previous ruling in AT&T v. City of Portland that cable Internet service consists of two elements, a pipeline and Internet service transmitted via that pipeline, and that the latter is a telecommunications service.   Download file  The significance of the classification is that telecommunications services are common carriers and cable broadband services should be required to open their lines to competing ISPs.  Reuters story
CIS's Cyberlaw Clinic filed an amicus brief in this case on behalf of the American Civil Liberties Union, urging this result.   Stanford law students Kalpana Srinivasen and Jennifer Elliott worked on the brief with Elizabeth Rader and Jennifer Granick.   The Court held it was bound by its previous ruling in AT&T v. City of Portland that cable Internet service consists of two elements, a pipeline and Internet service transmitted via that pipeline, and that the latter is a telecommunications service.   The opinion quotes Mark A. Lemley and Lawrence Lessig, The End of End-To-End:  Preserving the Architechture of the Internet in the Broadband Era, 2 UCLA L. Rev. 925, 926 (2001) explaining that residential broadband Internet access is "the holy grail of media companies."  Judge Diarmuid O'Scannlain concurred, agreeing that the Court is bound to follow Portland but expressing concern that in this case judicial review undermines the principal that courts should give substantial deference to agencies acting in their areas of expertise as authorized by Congress.   Judge Sidney R. Thomas concurred to underscore his conclusion that Portland was correctly decided and that deference to the agency's opinion was not due because the decision was on of pure statutory interpretation, also noting that agencies "may turn on a dime."