Brand X Internet Svcs. v. F.C.C.
| Decision Date | 06 October 2003 |
| Docket Number | No. 02-71425.,No. 02-72251.,No. 02-70685.,No. 02-70518.,No. 02-70879.,No. 02-70686.,No. 02-70684.,02-70518.,02-70684.,02-70685.,02-70686.,02-70879.,02-71425.,02-72251. |
| Citation | 345 F.3d 1120 |
| Parties | BRAND X INTERNET SERVICES, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent. Earthlink, Inc., Petitioner, SBC Communications, Inc., Intervenor, v. Federal Communications Commission, Respondent. Verizon Telephone Companies, Verizon Internet Solutions d/b/a Verizon.Net, Petitioner, SBC Communications, Inc., Intervenor, v. Federal Communications Commission, Respondent. Consumer Federation of America; Consumers Union; Center for Digital Democracy, Petitioners, v. Federal Communications Commission, Respondent. People of the State of California; ex rel. Bill Lockyer; Public Utilities Commission of the State of California, Petitioners, v. Federal Communications Commission; United States of America, Respondents. National League of Cities; National Association of Telecommunications Officers and Advisors; United States Conference of Mayors; National Association of Counties; Texas Coalition of Cities for Utility Issues, Petitioners, v. Federal Communications Commission, Respondent. Conestoga Township; Providence Township; Martic Township; Buckingham Township; East Hempfield Township, Petitioners, v. Federal Communications Commission, and United States of America, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harvey L. Reiter, Stinson Morrison Hecker LLP, Washington, D.C., argued the cause for petitioner Brand X Internet LLC and filed briefs.
John W. Butler, Sher & Blackwell, LLP, Washington, DC, argued the cause for petitioner EarthLink and filed briefs, and David N. Baker, EarthLink, Inc., Atlanta, Georgia. Earl W. Comstock and Alison Macdonald, Sher & Blackwell, also were on the briefs.
Ellen S. LeVine, California Public Utilities Commission, San Francisco, California, argued the cause for petitioner State of California and submitted briefs. Gary M. Cohen and Lionel B. Wilson also were on the briefs.
Frederick A. Polner, Rothman Gordon, P.C., Pittsburgh, Pennsylvania, argued the cause for petitioners Pennsylvania Townships and submitted briefs.
Tillman L. Lay, Miller, Canfield, Paddock and Stone, P.L.C., Washington, DC, argued the cause for petitioners National League of Cities, National Association of Telecommunications Officers and Advisors, United States Conference of Mayors, National Association of Counties, and Texas Coalition of Cities for Utility Issues, and submitted briefs.
Andrew J. McBride, Wiley Rein & Fielding, Washington, D.C., argued the cause for petitioner Verizon, and submitted briefs. Eve J. Klindera, Wiley Rein & Fielding, and William P. Barr, Michael E. Glover, Edward Shakin, and John P. Frantz, Verizon, Arlington, Virginia, also were on the briefs.
Cheryl A. Leanza and Andrew Jay Schwartzman, Media Access Project, Washington, D.C. filed briefs for petitioners Consumer Federation of America, Consumers Union, and Center for Digital Democracy.
John A. Rogovin, Acting General Counsel, and James M. Carr, Counsel, Federal Communications Commission, Washington, D.C., argued the cause for respondents Federal Communications Commission and the United States. R. Hewitt Pate, Acting Assistant Attorney General, Catherine G. O'Sullivan and Nancy C. Garrison, Attorneys, United States Department of Justice, Washington, D.C., Daniel M. Armstrong, Associate General Counsel, and Harry M. Wingo, Counsel, Federal Communications Commission, also were on the briefs.
Howard J. Symons, Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C., Washington, D.C., argued the cause for intervenors National Cable & Telecommunications Association, AOL Time Warner, Inc., Time Warner Cable, Charter Communications, Inc., and Cox Communications, Inc., and submitted a brief. Tara M. Corvo and Susan S. Ferrel, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Daniel L. Brenner, Neal M. Goldberg, and Michael S. Schooler, National Cable & Telecommunications Association, Washington, D.C., David E. Mills and Todd B. Klessman, Dow, Lohnes & Altbertson, PLLC, Washington, D.C., Henk Brands, Paul, Weiss, Rifkind, Wharton & Garrison, Washington, D.C., and Paul Glist, John D. Seiver, Geoffrey C. Cook, and Brian M. Joseph, Cole, Raywid & Braverman, LLP, Washington, D.C., also were on the brief.
William H. Sorrell, Attorney General, filed a brief for petitioners-intervenors State of Vermont, Vermont Public Service Board, and Department of Public Service. Dixie Henry, David B. Borsykowsky, and Peter M. Bluhm also were on the brief.
Michael K. Kellogg, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C., Washington, D.C., filed a brief for respondent-intervenors SBC Communications Inc., BellSouth Corporation, and BellSouth Telecommunications, Inc. Sean A. Lev and Colin S. Stretch, Kellogg, Huber, Hansen, Todd & Evans, Gary L. Phillips and Jeffry A. Brueggeman, SBC Communications, Washington, D.C., James D. Ellis and Paul K. Mancini, SBC Communications, San Antonio, Texas, and James G. Harralson and William J. Ellenberg, BellSouth Corporation, Atlanta, Georgia, also were on the brief.
Jennifer M. Rubin, Sidley Austin Brown & Wood, Washington, D.C. filed a brief for intervenor AT & T Corp. David L. Lawson, Virginia A. Seitz, C. and Frederick Beckner, Sidley Austin Brown & Wood, and Mark C. Rosenblum, Lawrence J. Lafaro, and Stephen C. Garavito, AT & T Corp., Bedminster, New Jersey, also were on the brief.
Robert J. Aamoth, Kelley, Drye & Warren, Washington, D.C., and Mark D. Schneider, Jenner & Block, LLC, Washington, D.C., filed a brief for intervenors Counsel for Competitive Telecommunications Association and WorldCom, Inc. Todd D. Daubert, Kelley, Drye & Warren, Marc A. Goldman and Kali N. Bracey, Jenner & Block, and William Single IV, WorldCom, also were on the brief.
Mark C. Carver, Uddo, Milazzo & Beatmann, Metarie, Louisiana, filed a brief for nonaligned intervenor Utility, Cable & Telecommunications Committee of the City Council of New Orleans urging reversal. Frank U. Uddo, Uddo, Milazzo & Beatmann, and William D. Aaron, Jr., Goins Aaron, PLC, New Orleans, Louisiana, also were on the brief.
Elizabeth H. Rader and Jennifer Stisa Granick, Center for Internet & Society, Stanford, California, filed a brief for amicus curiae American Civil Liberties Union.
On Petition for Review of an Order of the Federal Communications Commission.
Before: Richard D. Cudahy,* Diarmuid F. O'Scannlain, and Sidney R. Thomas, Circuit Judges.
OPINION
We must decide whether our prior interpretation of the Telecommunications Act controls review of the Federal Communications Commission's decision to classify Internet service provided by cable companies exclusively as an interstate "information service."
Over half of the households in the United States have Internet connections. See U.S. Dept. of Commerce, A Nation Online: How Americans Are Expanding Their Use of the Internet at 2 (Feb.2002), available at http:// www.ntia.doc.gov/ntiahome/dn/anationonline2.pdf (herein after "A Nation Online").1 Approximately 80 percent of those connections are "dial-up" connections. Such connections use the wires owned by local telephone companies to connect the user's computer to an Internet Service Provider's ("ISP's") "point of presence," which in turn is connected to the Internet "backbone." In addition to providing a connection to the Internet, most ISPs also provide services—including email, user support, and the ability to build web pages on the ISP's servers—as well as proprietary content. Customers connecting to the Internet via a traditional narrowband connection have many ISPs to choose from: There are thousands of such providers nationwide. But because of the limitations of the wires connecting the user's computer to the ISP's point of presence, data transmission over them is quite slow and does not afford users the capacity to access streaming video or audio content.2
By contrast, residential high-speed (or "broadband") Internet service allows for much faster and easier use of the Internet, including streaming audio and video. As such, it has been called "the holy grail of media companies." Mark A. Lemley & Lawrence Lessig, The End of End-To-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L.Rev. 925, 926 (2001). Currently, there are two principal "pipelines" through which consumers can receive broadband access: digital subscriber lines ("DSL") and cable lines.3 DSL uses the same copper wires employed in telephone service and dial-up access,4 while cable modem service uses the net work of coaxial cable employed to transmit television signals. Because the copper wires used for telephone service and coaxial cable used for cable television are already installed in most Americans' homes, telephone and cable companies have been able to deploy broadband Internet access relatively quickly and cheaply. In the case of DSL, an ISP uses equipment located at the telephone company to transmit Internet service to its subscribers. In the case of cable modem service, the connection to the Internet occurs at the "headend," or the origination point for signals in the cable system.5 In contrast to DSL service, however, where multiple ISPs may compete in the provision of Internet service over the same DSL pipeline, most cable operators either provide Internet service themselves or provide the service in conjunction with ISPs specifically created and owned by the cable operators. Thus, cable-owned or cable-affiliated ISPs—unlike most dial-up and many DSL ISPs—essentially own the "last mile" (i.e., the connection between the headend and the subscriber's home), giving them the power to restrict other ISPs' access to cable subscribers.
High-speed Internet service via DSL or cable modem is available to approximately 75...
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