"No," Hungar replied. "It depends on the nature of the offering" to consumers made by cable modem operators. But Justice Sandra Day O'Connor said that was "peculiar."
The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, struck down the FCC ruling in 2003, and the commission appealed to the Supreme Court last year
Representing those opponents in court yesterday, Thomas C. Goldstein told the court that the FCC had committed a "legal error."
Its position would "render the definition of telecommunications services in the Internet era a dead letter," Goldstein said.
He added that the FCC could use its power to grant regulatory "forbearance," and not enforce the rule, if it felt it necessary to lighten the burden on cable modem service in any particular instance.
But Goldstein's approach did not seem to satisfy Chief Justice William H. Rehnquist, who noted that "apparently Congress wanted to go in the direction of deregulation."
Justice Stephen G. Breyer added: "I have no idea how broadband services will be delivered in the future . . . so why not leave it up to the FCC?"
The case is National Cable Telecommunications Association v. Brand X and FCC v. Brand X, Nos. 04-277 and 04-281, consolidated. A decision is expected by July.
