Cable modem customers enjoy unfettered access to any content of their choosing on the Internet. Nothing in the Brand X decision alters this reality.
The decision is a strained reading of an earlier Ninth Circuit case to which the three-judge panel felt legally bound. By virtue of the prior decision in AT&T v. City of Portland, the panel felt compelled to characterize cable modem service as a telecommunications service, a legally erroneous conclusion that neither Congress nor any other U.S. court has ever reached.
Well-established U.S. Supreme Court precedent provides that where a statute is ambiguous, courts are compelled to defer to reasonable agency interpretations. Because of the odd legal juxtaposition of the Brand X appeal and the prior Portland case, the panel failed to defer to the FCC.
We agree with one of the panel’s judges who aptly recognized this ruling as “positively bizarre.” NCTA fully supports an FCC appeal.