Supreme Court's (Brand) X Factor

According to reports late last week by various news services, the administration has been talking with Judge Sidney Thomas of the Ninth Circuit federal appeals court about the upcoming vacancy on the High Court.

Judge Thomas delivered the opinion in the AT&T vs. City of Portland case in 2000, which held that open-access mandates could not be applied to AT&T by the city as part of a franchise agreement because Internet (@Home) was not a cable service, but at least partly a telecommunications service. "Under the Communications Act, [the] principle of telecommunications common carriage governs cable broadband as it does other means of Internet transmission such as telephone service and DSL," Judge Thomas wrote in the Portland decision. Ironically, that designation could open the door to federal access regulations if the FCC decides to classify cable broadband as a Title II telecommunications service subject to interconnection and nondiscrimination requirements. Judge Thomas actually twice came to the conclusion that cable modem service included a transmission component that was subject to Title II regulations. The second time was when he concurred in the court's second call on classification. That came in the Brand X case, which challenged the FCC's subsequent classification of the service as a more lightly regulated information service.