Umm… Did Judge Wilson just suggest that ISPs fall under the CABLE ACT??

I was just reading DieTrollDie’s article, and looking at Judge Wilson’s ruling [in the Malibu Media, LLC v. John Does 1-18 (Case No. 8:12-cv-01419) case in the U.S. District Court for the Middle District of Florida], it appears as if he just suggested that ISPs fall under the CABLE ACT (See Order, Doc 14, p. 5 of 7).

ORDER: …3. Each of the ISPs that qualify as a “cable operator” under 47 U.S.C. 522(5) shall comply with 47 U.S.C. 551(c)(2)(B), which provides that:

A cable operator may disclose [personally identifiable information] if the disclosure is … made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

Now many of you know that I have wrapped my head around the Cable Communications Policy Act of 1984 (a.k.a., “the Cable Act”) so many times, and it surprises me that now TWO judges have suggested that a law written in 1984 applies to the internet (which was not even in existence at the time the Cable Act was written).

As we discussed on Monday in the “Judge Facciola opens up a can of worms with the Cable Act” article, 1) DC Judge Facciola argued whether an ISP would violate the Cable Act by sharing subscriber information. He concluded that assuming arguendo that the Cable Act did apply [noting that DC has not yet ruled on the issue of whether the Cable Act applies to ISPs], that Cablevision would not violate the statute if it complied with the copyright troll’s subpoena. Now, we have 2) Judge Wilson explicitly ordering “each of the ISPs that qualify as a “cable operator” under the Cable Act to comply with the subpoena.

In its essence, the Florida Middle District just ruled that ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT STATUTES.

This is fascinating to me (especially since these judges would be going against significant case law from other districts stating that the Cable Act does NOT apply to ISPs) because it appears as if Judges are trying to corner the ISPs into the confines of the Cable Act (which makes my May 5, 2011 argument of how to sue ISPs for violating the Cable Act possibly viable). I have not even considered the MANY IMPLICATIONS of what happens if — as a rule — ISPs became bound by the Cable Act provisions? What else would change?

Looking at this logically, it makes sense to me that an Internet Service Provider (“ISP”) can be a “cable operator” bound under the Cable Act. Why? Because cable companies (Cablevision, Comcast, Verizon, etc.) *ALL* have taken a HUGE SHARE of the internet subscriber business. Cable companies today offer internet services to their subscribers. Thus, it makes sense that an ISP can be a “cable operator,” and thus they can be bound by the Cable Act.

After all, if hypothetically a huge oil company such as Exxon started selling their Esso Tiger toy dolls (remember these?), wouldn’t they also be obligated to the laws that govern child safety laws regarding lead paint? How can an ISP say “we’re no longer a cable operator, we’re an ISP” when the same customer who pays for their internet connection pays them for their cable service?


Wow, this is a can of worms.

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    1. There is obviously SO MUCH MORE to discuss about this ruling, as it puts the copyright trolls on a leash in a way that I would like other judges to follow suit. That being said, I could only write about one topic at a time, and the DieTrollDie article covered the relevance of this order quite nicely. -Rob

    2. I do not interpret his ruling as issuing a clear definition of a broadband cable provider falling under the definition of “cable operator” under the Cable Act. To me, he didn’t explicitly state it. He just said (this is my interpretation) “if an ISP qualifies as a ‘cable operator’ under the Cable Act” (which they do not based on the way it’s worded, IMO). If he wanted to define a cable ISP as a cable operator under the Act, then it would (or at least should) have been explicit and unambiguous. It looks like he tiptoed around the issue like Facciola with no clear definition. Then again I’m no attorney but I am very familiar with semantics since I play word games all the time.

      This also creates another problem…parity. IF this ruling does bind cable ISPs to the Act, then what of DSL providers? They get separate treatment, or at least in theory they do even though judges have been allowing third-party subpoenas to be issued to DSL as well as dialup providers under the powers granted by the Cable Act. That is troubling. It’s as if they’re saying that all forms of internet access are all subject to Title VI.

      • @Anon, I didn’t write this article for you, but I DID SPECIFICALLY HAVE YOU IN MIND when I wrote it. I am happy you commented because I was hoping that you would give further input on the subject matter.

        In short, I wrote this article with a bit of a chuckle, as you and I see the Cable Act’s application to ISPs (or actually NON-APPLICATION) in the same way.

        That being said, from a lawyer’s perspective, a judge tiptoes around an issue; other judges adopt that judge’s ruling, and the next thing you know, you have a developing body of CASE LAW (which as far as anyone is concerned is just as strong as the written law in the books) stating that the Cable Act applies to ISPs.

        It is my opinion that this is a dangerous twist for judges to take, (and FYI, no judge will openly state such an open ruling that “CABLE ACT APPLIES TO ALL ISPs”), but slowly over time they carve out enough case law to make an argument that it applies, and then you end up with one big ruling (supported by many small rulings as you see developing here) with the conclusion that it applies.

        Now @Anon, here is where I turn the issue back to you. I was of the opinion that the Cable Act did NOT apply to ISPs because I researched the law, saw the many cases from certain federal districts ruling that they do not apply, and I say “oh, I guess it does not apply,” and I walked away from the argument. Get a few more rulings from judges saying that it DOES apply and what you will have is a SPLIT between the districts (which will force the issue to a higher court to resolve the issue). This is how a lot of law is made.

        My question for you, and I ask this because Telecom is not my area of practice — what is Title VI, and what is the relevance of an ISP being classified as being subject to Title VI? I would even consider inviting you to write a guest blog about it as well if you are up for it to explain why this issue is relevant (or not).

    3. I appreciate you valuing my opinion, especially since I’m not even an attorney. Not too sure about a separate blog, I’ll have to think about it. Telecom law is, well, a ****ing mess. If I missed something, I apologize. My brain is kinda fried since telecom law is utterly mind-boggling when trying to figure out the implications of Telecom Act of 1996 with respect to the 1934 Act. This is after a day of preparing financial statements.

      When I speak of TItles I-VII I’m speaking of the Communications Act of 1934 (47 U.S.C. § 151 et seq), not to be confused with the Telecommunications Act of 1996. The Act has been amended over the years, regulating everything from telegraphs to broadband service and contains General Provisions (Title I), Common Carriers (Title II), Cable Act (Title VI). There are other Titles, but for purposes of discussion I’m only including those three. The Cable Communications Policy Act of 1984 amended the Communications Act of 1934, which was subsequently amended by the Telecommunications Act of 1996. Numerous provisions included in the Telecommunications Act of 1996 were simply incorporated into the various applicable Titles under the 1996 Act so for the purposes of this discussion, the two Acts are one in the same. Also, the 1996 Act does not apply to provisions under Title I.

      Specifically, broadband providers (cable, DSL, satellite, and whatever else there is out there) are classified under Title I by the FCC itself by a 2002 Declaratory Ruling that cable modems are NOT a “cable service” under the Communications Act of 1934 and are an “information” service under Title I. The classification was upheld by the Supreme Court in 2005 in the Brand X decision. It was also brought up in Comcast v. FCC, SCOTUS ruled that it is an “information service”. Klimas v. Comcast also found that broadband cable providers are not “cable operators” under the Cable Act. The issue of defining broadband cable is being with all of this net neutrality garbage going on so who knows what’s ahead.

      Point being, as per the majority opinion in the Brand X case, broadband internet service has been classified as an “information service,” therefore falling under Title I of The Communications Act. The Ninth Circuit initially redefined broadband service as both an “information service” (Title I) and “telecommunications service” (Title II). SCOTUS eventually ruled that broadband falls under Title I, not II. The reasoning behind it being classified under Title I and not II is that broadband internet service providers are not considered common carriers. This does not really have any bearing on Title IV, but being an “information provider” is advantageous in that there’s less regulatory oversight.

      We do have a developing body of case law…in troll cases since it’s like these judges don’t even read FCC press releases or MAJOR decisions. The real issue is that we have an FCC Declaratory Ruling (that still stands and has been de facto affirmed by the Supreme Court) stating that a broadband cable internet provider is not a “cable operator” under the Cable Act, a Supreme Court ruling stating that broadband internet service is an “information service,” DC Circuit Court of Appeals ruling essentially the same. This is in direct conflict with what some of the judges in these troll cases have ruled. Shouldn’t the FCC’s Declaratory Ruling be precedent? The SCOTUS overturning the Ninth Circuit’s ruling effectively revived the FCC’s Declaratory Ruling, so why are these judges just ignoring the FCC? Another issue, which I haven’t even discussed, is the lumping of DSL providers under “cable operators” or “cable service” which is totally messed up given the fact that, based on the various high court rulings, DSL and cable services shall be treated the same. If a cable internet operator doesn’t fall under Title VI, then how can a DSL provider fall under the Title.

      • @Anon,

        Thank you for that overview. Looking at what you have written, I see and agree with your frustration that judges should stick to precedent (unless they have some other reason or motivating scheme for using these trolling cases to redefine ISPs as “cable operators” or a “cable service,” carving out some distinction from the U.S. Supreme Court cases currently in place (and I want to point out that Judge Facciola in DC did refer to those cases in his decision which caused all this mess).

        That being said, I would hate to blame ignorant mistakes by judges on their law school interns who draft orders for them, whereas the interns certainly know little (if anything) about FCC rulings or policy.

        For this reason, I have to get frustrated at this misjustice of judges making faulty rulings ignoring the FCC, and I would love another lawyer who deals with this area of law to pipe in and give an answer to @Anon’s comment.

        The only answer I could possibly think of is that there is SOME REASON judges are starting to use the copyright trolling cases as a tool to classify ISPs as cable operators (or at least those ISPs who are cable operators first and ISPs second).

        You mentioned “NET NEUTRALITY.” This is a hot topic which I agree that we will be seeing more about. I wonder (as you mention) whether *THIS* could be a motivating force behind these otherwise innocuous “mistakes” in the judges’ rulings. Perhaps there is some agenda along these lines, and we are just getting caught up in some Judges’ unspoken agenda.

        It still makes my head spin just thinking about adding in Telecom rulings into the copyright infringement cases. This is supposed to be a question of whether an internet user can be found guilty of copyright infringement for downloading copyrighted materials via bittorrent, not whether an ISP is a cable operator under the confines of telecom law.

        • I noticed a few typos…oh well got my point across. I too would like an attorney’s opinion on this as I’ve just been going through statutes, comparing with case law, and regulatory rulings. Not to mention the extent of my legal education is limited to a few b-law courses as an undergrad and my experience in tax law as part of my profession (hardly telecom law).

          Interesting fact…cell phones are regulated under Title II and Duffy has actually subpoenaed Verizon Wireless under the Cable Act for what I assume was a wireless subscriber’s information who allegedly committed infringement. Now…how would a cell phone fall under the Cable Act? That’s preposterous.

          I cannot explain why judges seem to not want to rock the boat, or if they do, they apparently do not perform any research prior to issuing a ruling stating that the Cable Act does apply. Could be playing CYA seeing as how they allowed subpoenas to be issued under the Cable Act, cable company objects, but the judge doesn’t wanna reverse his or her own ruling. Could be out of convenience since the only other way to get cable subscribers’ info is through a subpoena under the Stored Communications Act 18 USC Sec. 2702(c)(6) (I think that’s the right one at least) and there’s ECPA implications there. 551 is just the easiest way. If these are innocent mistakes by judges due to some “wet behind the ears” clerk or intern/extern who’s too lazy to use Google, that’s a very large problem. Or maybe I’m just missing something? I do not believe this is an agenda because it’d have to be some vast conspiracy across the country between judges in jurisdictions from DC to California.

          Net neutrality or not, the FCC has yet to issue any binding rulings with respect to the Cable Act. It can issue as many proposals and requests for comments as it wants, but hasn’t issued any rulings. It should also be known that, after the Comcast v. FCC case, the FCC’s ancillary authority is more limited than previously thought so it is definitely looking for new ways to regulate broadband internet. As far as net neutrality is concerned, the worst the FCC can do is reclassify broadband into Title II, but ISPs will raise hell.

          For parity to exist between different types of broadband ISPs and for a clear framework, Congress must step in and legislate a new Act which will (likely) be amended to the current Communications Act. That’s exactly what Congress did for the Cable Act when it realized there was no regulatory framework in place for all of the new issues arising out of cable TV (black boxes, etc). Until then, IMO, the Cable Act does not and cannot apply to any broadband provider, much less a broadband cable provider. “Broadband Provider Act of 20XX.” I don’t care if it allows them to do the same garbage as what they’ve been doing under the Cable Act, just that it’s clear.

          I agree. Questions regarding the applicability of telecommunications laws and regulations should not even be a question in any case that has nothing to do with telecommunications. It should be cut and dry, no ambiguity. We should not even need to have a conversation on the subject. Unfortunately, we do need to have it. The fact that we are having it is a step in the right direction since the issue needs to be addressed and drawing more attention to the issue can only have a positive effect.


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