[opendtv] News: Supremes to Hear Brand X, Grokster on Same Day
- From: Craig Birkmaier <craig@xxxxxxxxx>
- To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
- Date: Thu, 20 Jan 2005 10:45:36 -0500
http://www.broadcastingcable.com/article/CA497720.html?display=Breaking+News&referral=SUPP
Supremes to Hear Brand X, Grokster on Same Day
By Bill McConnell -- Broadcasting & Cable, 1/19/2005 4:13:00 PM
Mark your calendars for March 29.
The Supreme Court Wednesday announced that it will hear both of the
media industry's big court cases on the same day.
One will decide whether cable operators must carry rival ISPs over
their broadband networks. The other will determine whether
file-sharing networks like Grokster and StreamCast Networks Inc. can
be held liable for copyright violations when individuals use their
software to illegally copy content.
In the cable access case, the Bush Administration late Tuesday asked
the Supreme Court to uphold the FCC's authority to decide whether
access rules for cable Internet are necessary.
Justice Department attorneys told the justices that previous high
court rulings already give the FCC wide power to interpret ambiguous
passages of the 1996 Telecommunications Act. "As this court has
recognized, Congress was well aware that the ambiguities it chose to
produce in drafting the 1996 act" would be resolved by the FCC,
Justice Department attorneys told the Supreme Court in opening briefs
due Tuesday.
At issue is a 2002 FCC decision not to impose telephone-style access
rules on cable modem service. If it had, that would have obligated
cable operators to carry rival ISPs on their broadband networks.
Rather than classify cable Internet service as a "telecommunications
service" bound by the same rules as Bell telephone monopolies, the
FCC declared cable broadband was an "information service."
The FCC says its classification gives the agency the right, but not
the obligation to order open access for cable Internet.
Imposing a mandate now would discourage cable operators from rolling
out broadband service, the FCC has argued, one of the priorities of
the Michael Powell-led commission.
The fight over cable Internet access has pitted the cable industry
against ISPs like Earthlink and media activists in a series of legal
battles since 1998.
In the last round, a 2003 decision, the federal appeals court in San
Francisco struck a blow against operators by ruling that cable
Internet service is bound by the same access burdens as telephone
companies. The FCC and the cable industry disagree, saying there's no
obligation to file a telephone-style mandate and the commission may
wait and see if an access mandate is warranted by, say, blocking of
content on rival web sites by cable operators.
Long-standing court doctrine requires judges to defer to "expert
federal agencies" like the FCC when they implement statutes that
don't provide clear direction on all legal questions. That so-called
Chevron doctrine, named for the plaintiff in the court decision
establishing the doctrine, requires courts to defer to federal
agencies if the law being administered is unclear and the agency's
interpretation is reasonable.
The main question before the justices is whether the FCC's
"hands-off for now" classification of cable Internet services is
reasonable. The Justice attorneys complained that the San Francisco
court wrongly "refused" to determine whether the FCC was due the
traditional deference in the cable modem case.
The National Cable & Telecommunications Association also submitted
its legal brief supporting the FCC Tuesday. The Telecommunications
Industry Association, which represents Media activists and ISPs, must
file briefs in support of the lower court ruling Feb. 22.
In the file-sharing case, the justices must decide whether to uphold
a lower court's decision ruling that Grokster and StreamCast are not
liable for copyright infringement because they don't maintain
centralized indexes of files available for sharing.
Grokster and StreamCast systems disburse indexes among users'
privately owned computers. The lower court ruling in this case, also
by the San Francisco federal appeals court, held that the disbursed
indexing was enough to insulate the networks from legal challenges
that brought down Napster, another peer-to-peer network.
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