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Brennan Center and ACLU Amicus Brief in Brand X Case Urges the Court Not to Let Cable Companies Monopolize the Internet

(Feb. 22, 2005) - The Brennan Center for Justice and the American Civil Liberties Union filed an amicus brief with the Supreme Court today in a case that may determine the future of free expression on the Internet. National Cable & Telecommunications Association v. Brand X Internet Services is a challenge by a coalition of Internet Service Providers to the FCC’s classification of cable broadband Internet access as an “information service” rather than a “telecommunications service.” Under federal law, "telecommunication services" must comply with an extensive set of common carrier requirements that limit their ability to control the availability of information carried over their networks, or to limit access to speech provided by competitors. "Information services" are not required to obey these requirements.

The U.S. Court of Appeals for the Ninth Circuit rejected the FCC’s classification, ruling that although cable operators are "information services" for some purposes. they act as "telecommunications services" when they provide broadband access to the Internet. The FCC and the association representing cable companies sought Supreme Court review. One major issue in the case is what degree of deference the federal courts must pay to an FCC decision, even when the courts have already ruled on the issue.

The ACLU/Brennan Center amicus brief urges the Court to affirm the Ninth Circuit’s decision. The FCC’s classification would permit cable broadband service providers, which are quickly becoming the dominant suppliers of Internet access and rarely face competition, to leverage their market power to control access to and use of the Internet. Control of Internet access by monopolistic service providers threatens vital free speech and privacy interests by allowing censorship, monitoring, and efforts to steer Internet users to favored sources of information. In ruling as it did, the FCC contradicted the plain language of the law and disregarded its statutory duty to consider the impact of its decisions on free speech.

Adam Morse & Marjorie Heins

For more background on this case, see News: Supreme Court Will Consider Cable Broadband Access

For the ACLU/Brennan Center amicus brief, click here.

Update: On June 28, 2005, the Supreme Court reversed the Ninth Circuit decision and upheld the FCC's ruling that cable broadband providers are information services only. See "Two Defeats - and a Silver Lining."

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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