Court Rules F.C.C. Erred in Decision on Net Access

[Dave Farber <dave () farber net>]

> Court Rules F.C.C. Erred in Decision on Net Access
>
> October 7, 2003
>  By MATT RICHTEL
>
>
>
>
>
> SAN FRANCISCO, Oct. 6 - In a setback for the Federal
> Communications Commission, a federal court issued a ruling
> on Monday that may force cable companies to share their
> high-speed Internet, or broadband, networks with competing
> Internet service providers.
>
> The decision, issued by a three-judge panel of the Court of
> Appeals for the Ninth Circuit, found that the F.C.C. erred
> in an earlier ruling that effectively absolved cable
> companies of any obligation to make their lines accessible
> to competitors.
>
> The decision was hailed by Internet access providers who
> sued to get the right to lease those lines and offer
> competing services over them. They said the court decision
> would give consumers more choice when shopping for a
> provider of high-speed Internet service. "This will help
> drive prices down and quality of service up; it will drive
> broadband deployment," said Dave Baker, vice president for
> law and policy at Earthlink, an Internet service provider
> and a plaintiff in the lawsuit.
>
> The F.C.C. said it would appeal the case. Michael K.
> Powell, the chairman of the F.C.C., said in a statement
> that the decision would hurt efforts to develop a national
> policy on high-speed Internet services.
>
> The court decision is another blow to the F.C.C., which has
> been under attack from Congress for its decisions
> permitting greater media consolidation.
>
> Despite claims of victory by the cable industry's
> competitors, telecommunications lawyers said the
> implications of the 39-page ruling might not be clear for
> some time. They said the decision did not specifically
> require cable companies to lease their lines to
> competitors. Rather, the court ruled that the F.C.C. was
> wrong in the way it categorized cable broadband services
> for regulatory purposes.
>
> In March 2002, the commission ruled that it would regulate
> cable broadband providers as "information services," a
> definition that applies to companies that process data.
> Companies that fall under that definition are subject to
> much less stringent regulation.
>
> The F.C.C.'s approach toward broadband regulation - for
> both cable companies and telephone companies - is to permit
> the major players to build their high-speed Internet
> infrastructure without requiring them to open their
> networks to competitors. The F.C.C. has said the best way
> to expand deployment is to give the big companies incentive
> to invest in new networks.
>
> The appellate court, however, found that cable broadband
> service providers were in part providing
> "telecommunications services," a definition that could
> subject them to the greater obligations of "common
> carriers" under federal law.
>
> The court indicated in a footnote in the ruling that "the
> practical result of such a classification is that cable
> broadband providers would be required to open their lines
> to competing" Internet service providers. Mr. Baker of
> Earthlink asserted that the court's language meant that his
> company "should be able to buy transport from all cable
> companies."
>
> That result is by no means certain. In a preliminary
> decision in February, the F.C.C. said it would not force
> the telephone companies to lease their high-speed Internet
> access, or digital subscriber lines, to rivals. The
> commission could apply that ruling to cable companies as
> well.
>
> Even before the ruling, some cable companies reached
> agreements with Internet service providers to lease their
> high-speed cable lines. For instance, Comcast Cable, one of
> the largest cable companies, has agreements to share its
> network with several national Internet service providers,
> including America Online and Earthlink, as well as regional
> providers.
>
> Mr. Baker said Earthlink's cable agreements give it access
> to about 25 percent of the homes in the United States that
> are served by cable.
>
> The National Cable and Telecommunications Association, a
> trade group, said the court decision was one step in a long
> process and that it did not yet have an opinion on the
> case.
>
> David H. Fiske, a spokesman with the F.C.C., said the
> agency did not know whether the decision could force a
> change in direction or policy. He said the agency was
> reviewing the access issues raised by cable modem and
> D.S.L., but said it is unclear whether the same legal
> analysis would apply to both technologies.
>
> F.C.C. lawyers also said that even if cable broadband
> providers were regulated as telecommunications services,
> the agency could choose not to impose a regulation that
> required them to lease their lines to competitors.
>
> http://www.nytimes.com/2003/10/07/technology/07CABL.html?ex=1066513861&ei=1&en=0696695271778a0b

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