Brand X

As Joel from Mystery Science Theater 3000 used to say, "I hope you're not afraid of boredom." Because boredom is the weapon the Federal Communications Commission (FCC) is using to keep you from learning more about a deeply strange and important case that's coming up on the Supreme Court docket.

The case, which is often called "Brand X" and will be heard by the Supreme Court sometime next year, is so shockingly boring and cruelly bureaucratic that even seasoned telecommunications policy wonks and rabid tech lawyers find themselves cringing at the idea of it. And yet the outcome of Brand X has the potential to change - dramatically - the cost and availability of broadband cable Internet access across the United States. It could also give government spies much better wiretap access to your online communication.

Brand X is the result of a smackdown between the FCC, whose commissioner is the conservative, conglomerate-friendly Michael Powell (yup, he's the son of Colin), and the notoriously liberal Ninth Circuit Court of Appeals. Their disagreement - which is so severe that even the U.S. Department of Justice's powerful Office of the Solicitor General begged the Supremes to intervene - hinges on how you define the word service in the cable modem industry. I shit you not.

It all started in the late 1990s when the city of Portland, Ore., tried to stop its local cable franchise from getting sold to cable giant AT&T. Portland's efforts ultimately landed it in the Ninth Circuit, where a panel of judges decided that the city couldn't stop the sale because cable modem services qualified as a new category of hybrid service: half telecommunications, half information. Laws regulating these services state that no one may interfere with their sale.

But there was a catch to this new definition. Because cable modem services had been redefined as part telecommunications, providers would be obligated to behave the way phone companies do. That meant they would have to provide "open access" to competitors on their wires. Just as consumers can get phone service from a local company over AT&T's telephone wires, consumers could now buy broadband from local Internet service providers using AT&T's cable network. Consumers could now choose between using a local ISP and AT&T for their Internet service.

Let's just say that the cable companies were not too fucking happy about this development. Neither was Powell, who wants to keep cable in as deregulated a state as possible. So he and his cronies at the FCC issued a rule saying that in fact cable Internet services weren't hybrid at all: they were pure information services, a category that's mostly free of government regulation.

A whole bunch of groups got pissed off – companies like Verizon wanted even less regulation, while local ISPs like Brand X Internet Services wanted open access to continue under the regulations provided by the Ninth Circuit's hybrid definition. Seven petitions from all over the country were filed with the FCC, asking the agency to rethink its rule. Then in 2002 things got really weird. The Judicial Panel on Multidistrict Litigation assigned the case on a random basis to the court responsible for the initial controversy, the Ninth Circuit, which was put in what one judge called a "strange" position: it had to decide whether a regulatory agency was engaging in proper regulation. And the answer was a resounding no. The three-judge panel vacated the FCC's rule, and Judge Sidney Thomas wrote in his concurrence that their decision would "enhance independent ISP access to telecommunications facilities, almost certainly increasing consumer choice." It effectively forces cable companies across the country to open up their wires to local competitors.

But the FCC and its big cable buddies couldn't let it go. And with help from the DOJ, they convinced the Supreme Court to consider overturning the Ninth Circuit's decision.

Why would Justice get involved? In a recent issue of Tech Law Journal, David Carney speculated it was because the department wants the FCC to issue a rule on the Communications Assistance to Law Enforcement Act that would force companies offering cable modem services to make things easy for law enforcement by building wiretap technologies into their networks. The irony here is that issuing such a rule in CALEA would mean the FCC has to define cable modems as telecommunications services. Apparently, according to a sardonic attorney I know, this kind of doublethink is completely plausible. "Just define cable as one thing under one law and another thing under another," he said with an evil cackle. "No problem."

If you haven't yet expired from bureaucratic malaise, put this in your fusebox: no matter what the outcome of this case, the DOJ wins. If the Supremes decide cable modem services are a hybrid telecommunications-information service, the department can use this new definition to push the FCC to classify cable as a telecommunications service that should be wiretapped under CALEA. And if the Ninth Circuit's decision is overturned, the DOJ has already scratched Powell's back enough that his agency will give it a friendly rule on CALEA. In the end, it may not matter whether we have consumer choice when it comes to our ISPs - they're all going to be wiretapped anyway. And that's scary enough to shake anyone out of their boredom.


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