BRAND X INTERNET SVCS. v. F.C.C.

Nos. 02-70518, 02-70684, to 02-70686, 02-70879, 02-71425 and 02-72251.

345 F.3d 1120 (2003)

BRAND X INTERNET SERVICES, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent. Earthlink, Inc., Petitioner, SBC Communications, Inc., Intervenor, v. Federal Communications Commission, Respondent. Verizon Telephone Companies, Verizon Internet Solutions d/b/a Verizon.Net, Petitioner, SBC Communications, Inc., Intervenor, v. Federal Communications Commission, Respondent. Consumer Federation of America; Consumers Union; Center for Digital Democracy, Petitioners, v. Federal Communications Commission, Respondent. People of the State of California; ex rel. Bill Lockyer; Public Utilities Commission of the State of California, Petitioners, v. Federal Communications Commission; United States of America, Respondents. National League of Cities; National Association of Telecommunications Officers and Advisors; United States Conference of Mayors; National Association of Counties; Texas Coalition of Cities for Utility Issues, Petitioners, v. Federal Communications Commission, Respondent. Conestoga Township; Providence Township; Martic Township; Buckingham Township; East Hempfield Township, Petitioners, v. Federal Communications Commission, and United States of America, Respondents.

United States Court of Appeals, Ninth Circuit.

Filed October 6, 2003.


Attorney(s) appearing for the Case

Harvey L. Reiter, Stinson Morrison Hecker LLP, Washington, D.C., argued the cause for petitioner Brand X Internet LLC and filed briefs.

John W. Butler, Sher & Blackwell, LLP, Washington, DC, argued the cause for petitioner EarthLink and filed briefs, and David N. Baker, EarthLink, Inc., Atlanta, Georgia. Earl W. Comstock and Alison Macdonald, Sher & Blackwell, also were on the briefs.

Ellen S. LeVine, California Public Utilities Commission, San Francisco, California, argued the cause for petitioner State of California and submitted briefs. Gary M. Cohen and Lionel B. Wilson also were on the briefs.

Frederick A. Polner, Rothman Gordon, P.C., Pittsburgh, Pennsylvania, argued the cause for petitioners Pennsylvania Townships and submitted briefs.

Tillman L. Lay, Miller, Canfield, Paddock and Stone, P.L.C., Washington, DC, argued the cause for petitioners National League of Cities, National Association of Telecommunications Officers and Advisors, United States Conference of Mayors, National Association of Counties, and Texas Coalition of Cities for Utility Issues, and submitted briefs.

Andrew J. McBride, Wiley Rein & Fielding, Washington, D.C., argued the cause for petitioner Verizon, and submitted briefs. Eve J. Klindera, Wiley Rein & Fielding, and William P. Barr, Michael E. Glover, Edward Shakin, and John P. Frantz, Verizon, Arlington, Virginia, also were on the briefs.

Cheryl A. Leanza and Andrew Jay Schwartzman, Media Access Project, Washington, D.C. filed briefs for petitioners Consumer Federation of America, Consumers Union, and Center for Digital Democracy.

John A. Rogovin, Acting General Counsel, and James M. Carr, Counsel, Federal Communications Commission, Washington, D.C., argued the cause for respondents Federal Communications Commission and the United States. R. Hewitt Pate, Acting Assistant Attorney General, Catherine G. O'Sullivan and Nancy C. Garrison, Attorneys, United States Department of Justice, Washington, D.C., Daniel M. Armstrong, Associate General Counsel, and Harry M. Wingo, Counsel, Federal Communications Commission, also were on the briefs.

Howard J. Symons, Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C., Washington, D.C., argued the cause for intervenors National Cable & Telecommunications Association, AOL Time Warner, Inc., Time Warner Cable, Charter Communications, Inc., and Cox Communications, Inc., and submitted a brief. Tara M. Corvo and Susan S. Ferrel, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Daniel L. Brenner, Neal M. Goldberg, and Michael S. Schooler, National Cable & Telecommunications Association, Washington, D.C., David E. Mills and Todd B. Klessman, Dow, Lohnes & Altbertson, PLLC, Washington, D.C., Henk Brands, Paul, Weiss, Rifkind, Wharton & Garrison, Washington, D.C., and Paul Glist, John D. Seiver, Geoffrey C. Cook, and Brian M. Joseph, Cole, Raywid & Braverman, LLP, Washington, D.C., also were on the brief.

William H. Sorrell, Attorney General, filed a brief for petitioners-intervenors State of Vermont, Vermont Public Service Board, and Department of Public Service. Dixie Henry, David B. Borsykowsky, and Peter M. Bluhm also were on the brief.

Michael K. Kellogg, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C., Washington, D.C., filed a brief for respondent-intervenors SBC Communications Inc., BellSouth Corporation, and BellSouth Telecommunications, Inc. Sean A. Lev and Colin S. Stretch, Kellogg, Huber, Hansen, Todd & Evans, Gary L. Phillips and Jeffry A. Brueggeman, SBC Communications, Washington, D.C., James D. Ellis and Paul K. Mancini, SBC Communications, San Antonio, Texas, and James G. Harralson and William J. Ellenberg, BellSouth Corporation, Atlanta, Georgia, also were on the brief.

Jennifer M. Rubin, Sidley Austin Brown & Wood, Washington, D.C. filed a brief for intervenor AT & T Corp. David L. Lawson, Virginia A. Seitz, C. and Frederick Beckner, Sidley Austin Brown & Wood, and Mark C. Rosenblum, Lawrence J. Lafaro, and Stephen C. Garavito, AT & T Corp., Bedminster, New Jersey, also were on the brief.

Robert J. Aamoth, Kelley, Drye & Warren, Washington, D.C., and Mark D. Schneider, Jenner & Block, LLC, Washington, D.C., filed a brief for intervenors Counsel for Competitive Telecommunications Association and WorldCom, Inc. Todd D. Daubert, Kelley, Drye & Warren, Marc A. Goldman and Kali N. Bracey, Jenner & Block, and William Single IV, WorldCom, also were on the brief.

Mark C. Carver, Uddo, Milazzo & Beatmann, Metarie, Louisiana, filed a brief for nonaligned intervenor Utility, Cable & Telecommunications Committee of the City Council of New Orleans urging reversal. Frank U. Uddo, Uddo, Milazzo & Beatmann, and William D. Aaron, Jr., Goins Aaron, PLC, New Orleans, Louisiana, also were on the brief.

Elizabeth H. Rader and Jennifer Stisa Granick, Center for Internet & Society, Stanford, California, filed a brief for amicus curiae American Civil Liberties Union.

Before: Richard D. Cudahy, Diarmuid F. O'Scannlain, and Sidney R. Thomas, Circuit Judges.


Argued and Submitted May 8, 2003—Seattle, Washington.

PER CURIAM Opinion; Concurrence by Judge O'SCANNLAIN and Judge THOMAS, concurring in separate opinions.

OPINION

PER CURIAM:

We must decide whether our prior interpretation of the Telecommunications Act controls review of the Federal Communications Commission's decision to classify Internet service provided by cable companies exclusively as an interstate "information service."

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