9th Circuit Overturns FCC's Cable Modem Decision

Decaffeinated Jedi writes "According to this Washington Post article, a federal appeals court in California has overturned a Federal Communications Commission decision that many smaller companies claim has kept them locked out of the high-speed cable Internet business. As Chris Murry of Consumers Union (publisher of Consumer Reports) notes, 'Many consumers hate their cable companies' privacy policies and their failure to deal with spam effectively. Giving consumers a choice of Internet service providers would open the door to more competition, and let people choose services with better privacy and less spam.' As noted in News.com coverage of this decision, however, FCC chairman Michael Powell plans to appeal the ruling." Reader rednaxela provides some more insight (and a link to the ruling itself), below.

rednaxela writes "The 9th Circuit today issued a decision overturning the FCC's classification of cable modem service as an 'information service,' stating instead that cable modem service consists of both an 'information service' *and* a 'telecommunications service.' Telecommunications services are classified under Title II of the Telecommunications Act of 1996, and are subject to all kinds of regulation. Information Services are classified under Title I, and are largely free from regulation. If upheld, this decision will likely require cable modem providers to open their networks to competing ISPs. Further, this is likely to derail, or at least complicate, the FCC's plans to classify DSL service (which is provided primarily over incumbent telco facilities) as a unified 'information service." Bottom line - the 9th Circuit's decision may well have preserved open access for competing ISPs on all forms of wireline networks.' Here is the 9th Circuit's ruling (PDF).

Competition=good thing.

[dilvie]

I'd like some cable modem competition here.

9th Circuit

[Anonymous Coward]

If the 9th circuit were not a bunch of crackpots that overturn all kinds of stuff just for kicks, I'd take this seriously. However this being the 9th circuit, it will most likely be overturned again on appeal

Michael Powell ... trying to help?

[zangdesign]

Holy cow! I thought this guy was evil incarnate. So now, it looks like he's evil incarnate, who's trying to make himself look good.

Re:Competition=good thing.

[Catharz]

I'd like some cable modem competition here.

I'd love to see something like this happen here in Australia. You'd have some pretty interesting things happening with Bigpond and Optus customers. Bigpond cable customers would be jumping enmasse to Optus for the better bandwidth policies. Since Bigpond and Optus also run different speeds, it would also be possible for people to use Bigpond on Optus' higher speed cable (and use their bandwidth limits faster).

The biggest benefit though would be for the small ISP's who can't afford to lay cable. They could piggyback onto the cable network and reach more users. Personally, I'd love to use suck my pipe [suckmypipe.com.au] (unlimited bandwidth) on Optus' high speed cable. :)

Re:9th Circuit

[Quino]

They covered this in NPR; it's a myth that the 9th circuit gets a higher % overturned. It happens to be one of the busiest circuits (I think *the* busiest), so more cases go through and more cases later get overturned. But their % of rulings later overturned is no higher than other courts.

Re:No need to worry...

[Anonymous Coward]

the current Vegas Odds on the 9th Circuit Court being over turned are 21:1, based on past history alone.

Then it must not be very likely, as a $10 bet would pay $210 if the ruling were overturned. Perhaps you meant 2:1? Or 1:21?

BTW, if you do know of a casino offering 21:1 odds, please let me know; I could use some easy money.

Re:cool!

[Steffan]

> maybe now the most-technologically-advanced
> United States will catch up with third-world
> South Korea in broadband!!

Um, I don't think you can really call South Korea a 'third-world' country, especially since they're number 12 in the world [wallstreetview.com] in GDP, just ahead of Canada.

Re:9th Circuit

[whatparadox]

They covered this in NPR; it's a myth that the 9th circuit gets a higher % overturned. It happens to be one of the busiest circuits (I think *the* busiest),

~11,000 cases for the 9th vs. ~8700 for the 5th, next in line. The All Things Considered story was Sept. 17, 2003; "Arguments on Recall Filed with Appeals Court"

Re:9th Circuit

[applemasker]

This case was consolidated as part of multidistrict litigation from the Third, Ninth and D.C. Circuits. (op. at 14).

The 9th is an astute court, and intentionally "serves up" issues which the Supremes would otherwise neglect or not have before them. Please, before you critize their opinions on this or any other topic, RTFA.

Re:9th Circuit

[Anonymous Coward]

The courts were designed to put into practice the law as it is written, and to demand clarification of those laws in cases where it is vague or contrary.

The independent judiciary was one of the revolutionary new concepts incorporated into the US Constitution. The courts were designed to be a check and balance on the other two branches of government. The courts have the power to declare a law unconstitutional even though it may be perfectly clear. They also have the power to refuse to enforce a law.

It is not the business of the courts to be making law, which is exactly what the 9th Circuit Court of Appeals is known for.

That's correct. It is up to the legislature to draft the law (although these days, it's apparently drafted by lobbyists). It is up to the courts (and the Executive branch, and the voters) to keep the legislature from overstepping its bounds.

Perhaps you'd care to substantiate your claims that the 9th circuit has stepped outside its constitutionally proscribed role.

Re:No need to worry...

[AEton]

Here's a link [moderateindependent.com] that addresses the issue with some real numbers. 75% for 9th circuit, 100% for several others. The pundits who say "most overturned court" are looking at number of cases selected by the Supreme Court, not percentages - it's about as silly as Michael Moore's use of numbers instead of percentages for gun deaths in "Bowling for Columbine", and it smacks of the same yellow journalism to report that kind of figure.

Re:9th Circuit

[Avatar_LHo]

I guess NPR should talk to CNN [cnn.com] and advise them of this.

The San Francisco-based 9th Circuit is the most liberal and overturned federal appeals court in the country. The court's three-judge panels are known for several contentious rulings, including one that declared the Pledge of Allegiance unconstitutional in public schools and a decision last month that postponed California's recall election. That ruling was later overturned by a larger 9th Circuit panel.

going offtopic

[Anonymous Coward]

These were the clowns who wanted to take the reference to God out of the Pledge of Allegiance.

I find it amusing how people tend to forget about the clowns that put the reference to God in the Pledge of Allegience.

You speak as if it was always in there, but it was not.

Re:No need to worry...

[damiangerous]

The pundits who say "most overturned court" are looking at number of cases selected by the Supreme Court, not percentages

No, sorry, you're the one playing games with numbers here. I just typed it already in a comment below, so just follow http://www.centerforindividualfreedom.org/legal/9t h_circuit.htm [slashdot.org] to see how meaningless than 75% number is. You trying to compare small circuits having one or two cases reviewed and getting 100% turnover with the 24(!) cases heard from the 9th (that's more than the next two largest circuits combined, and they're not that much smaller in terms of cases heard). It's a meaningless number. The 9th has more cases reviewed, and more cases overturned. As a percentage and as an absolute number. Period.

Re:Question

[ChaosDiscord]

Maybe I'm misunderstanding this, but doesn't it seem odd that we're all expecting the cable companies to allow competition on a physical network that they built and own? If someone wants to compete with them, let them build their own network.

Many cities and other locales have specific laws limiting the ability of arbitrary companies to start running cables. Running any sort of cross city wiring is a major project that will create disruptions, the cost of which is, at least in part, be covered by the city. In some cities there are simply very complex laws making it very difficult to do the work (much more difficult than the original cable company faced). In some cities the cable company has an explicit monopoly on running the system. It's a giant mess and government's hand (and money) are already entangled in it.

Re:No need to worry...

[anagama]

"The pundits ... are looking at number of cases selected by the Supreme Court, not percentages"

This is a very good point but maybe I think it ought to be said more bluntly.

The 75% overturn rate is NOT 75% of the cases decided by 9th circuit cases. It is 75% of those cases the Supreme Court decides to review.

If you lose in the 9th, you get to ask the Supreme Court to review the case. If the SC refuses, it is a silent affirmation. In fact, it is even used in citations - if you see "cert. denied" after a cite, it means it was appealed to the SC and rejected (implying that the case was decided just fine at the circuit level).

Now, the SC is busy - it isn't going to spend its time patting the circuits on the back and saying "nice job". Instead, when a case is accepted for review by the SC, it is going to be a case in which the Court has some serious questions/doubts. It should therefor being pretty unsurprising that the cases accepted for review (which is far below the number appealed), stand a good chance of being overturned.

According the SC [supremecourtus.gov], they receive 7000 cases per year. They only write 80-90 opinions, and decide an additional 50-60 cases. At most, 150 cases are actually decided. This is 2.1% of the appeals to the court. Assuming 100% are overturned, the Circuits get it right 98 times in a hundred. If only 50% of a circuits decisions were overturned, they would get it right 99 times in a hundred. I personally doubt that the difference is significant. So you see, this "most overturned court" thing, aside from being wrong, is one of those statistics/damn lies things.

Re:No need to worry...

[pla]

I used that very same argument when my colleges lamented the shooting death of the 9 year old here the other day but here 5 year old brother.

Appeal to emotion tends to work poorly with geeks.

As well it should, since it has no logical validity whatsoever, but, just thought you might want to know so you can better match your arguments to your audience in the future.


No reason to give a fuck about unlikely things like that.

Sarcasm aside, no, we shouldn't worry about unlikely things like that. You or I could die tomorrow from having a chunk of airplane tire fall from the sky and hit us, but do you worry about that, too?

Statistics, when properly used, lets us determine how much we should worry about a particular threat. For example, malaria kills more people per year than any other pathogen, meaning we should REALLY feel concerned that studies have found Anopheles spp. mosquitos as far North as upstate New York. OTOH, school shootings kill fewer people each year than lightning strikes. Yeah, they may point to societal problems in general which we should take into consideration, but it forms an insufficient sample to make any drastic changes on a rational basis.

Or to put it into an "emotional" context for you, over a hundred times as many nine-year-olds died last year from car accidents (not even involving drunks) than firearm accidents. Ooooh, spooky, lets all run out and panic over the number of cars on our block.


Statistical correction of the day - the most recent ONDCP/NIDA advert mentioning pot and car accidents states that a third of drivers in accidents that test positive for some drug, test positive for marijuana. Yet, by their own numbers, that means that marijuana users actually have a lower risk for a car accident compared to other drugs, since far more than a third of drug users use marijuana. Gotta love them numbers, NIDA...

Re:not to mention "compliance fees"

[homer_ca]

If you're talking about the Presubscribed Interexchange Carrier Charge (PICC), it's not a tax. It was a payment mandated by the FCC that the long distance companies pay to the local phone companies, and it was set at about $1 per month for residence lines. Lots of long distance carriers charged up to $5 per month which is pure profiteering. It was really just a cost of doing business and they have no business charging you extra for that any more than they could charge a line item for the CEO's golden bidet. But they probably did it so they could say "don't blame us, it's a tax that the FCC forces us to collect". Which is a lie [state.sc.us]. I say "was" because that charge was eliminated [fcc.gov] for most phone lines in 2000. So if they're still collecting a "National Access Fee" in year 2003, consider it padding for the bill so they can offer you those low low long distance rates.

The lesser of 2 evils.

[bs_02_06_02]

The cable company is granted a "franchise" in most cities. This is, in simple terms, a monopoly. They are protected from competition. Lately, they've had to compete with satellite, but cable companies do have advantages (apartment buildings, high-rise condos, etc don't allow dishes).

As a result of this competition, the individual consumer has very little "say". There's no opportunity for anyone else to improve on the product.
Opening up the "local loop" allows competition. It doesn't necessarily promote the original owner to upgrade or enhance the system. They can drag their heels, saying, "If we upgrade, we don't see all of the possible revenue."
So, there are 2 evils: Government regulation, or de-regulation and living in a free market. Both have their downfalls. Everyone wants something in between.

Re:No need to worry...

[thczv]

According the SC, they receive 7000 cases per year. They only write 80-90 opinions, and decide an additional 50-60 cases. At most, 150 cases are actually decided. This is 2.1% of the appeals to the court. Assuming 100% are overturned, the Circuits get it right 98 times in a hundred. If only 50% of a circuits decisions were overturned, they would get it right 99 times in a hundred.

This is overstated. When the Supreme Court denies a petition for cert, that does not mean that the lower court was right. As a general matter, the Supreme Court is not in the business of correcting errors. Its main purposes in taking cases are (a) to resolve conflicts among the various courts of appeals, and (b) to provide clarity as to serious questions of federal or constitutional law. It is a mistake to assume that whenever the Supreme Court doesn't take a case, the lower court was right. Sometimes it is just waiting for other lower courts to develop the issue in question more fully. --thczv