Pole Attachment Development (April 2, 2004)
9th Circuit Cable Modem Decision Stands

Date: Apr 02, 2004

On April 1, 2004, the U.S. Court of Appeals for the Ninth Circuit refused to rehear its cable modem decision, Brand X Internet Services v. FCC, No. 02-70518 (9th Cir. Oct. 6, 2003), which held that the transmission component of cable broadband service is a telecommunications service. Once effective, such a ruling would allow utilities subject to FCC pole attachment rules to charge the higher telecom rate to cable company attachers providing both cable and Internet service. Even more disturbing for the cable industry, the ruling also could subject cable modem service to a host of FCC telecommunications regulations, including a requirement to provide open access to competing Internet service providers.

The cable industry likely will appeal this latest Ninth Circuit decision to the Supreme Court, and probably will convince the court to stay the effectiveness of the decision until the higher court reviews its appeal request. In the meanwhile, utilities subject to the FCC's pole attachment rules should defer charging the higher telecom rate until such time as the Brand X decision becomes effective.

If you would like to file comments, or have any questions or comments about this proceeding, please contact Tom Magee at 202-434-4128 or magee@khlaw.com.

For additional information regarding pole attachment issues, you may obtain a copy of Keller and Heckman LLP's Pole Attachment White Paper.