Cable Modem Appeal Hits Court

When the Federal Communications Commission (FCC) passed rules more than a year ago classifying broadband via cable modem as an “information service,” a legal challenge was promised and, late last week in a Seattle courtroom, the battle was joined. The March 2002 FCC decision freed the cable industry from regulations that typically are applied to “telecommunications services,” including making access to their lines available to competing Internet service providers (ISPs).

The FCC ruling was almost immediately challenged by the Baby Bells, who are still required to make their dial-up lines available to competitors; ISPs, who want access to the cable broadband market; and public interest groups, who are fighting for an “open access” Internet.

Last Thursday, the 9th Circuit Court of Appeals began hearing the case.

The FCC defended its ruling before the court by arguing that less regulation will speed up the widespread adoption of broadband. Under Chairman Michael Powell, the FCC has approved a number of rules designed to fulfill Powell’s vision that broadband will ultimately be provided by multiple platforms that include cable, telephone, wireless and satellite.

In February, the FCC gave the Bells a deal similar to the cable broadband break. On a narrow 3-2 vote, the FCC said the Bells had to continue to lease their copper lines to ISPs at discounted rates for at least another three years, but also gave the Bells regulatory relief from sharing high-speed fiber broadband lines with competitors. That decision is also headed to court.

Public interest groups contend both decisions by the FCC are blow to open access, the ability of consumers to chose their ISP and access any content or services. The Media Access Project (MAP), a non-profit public interest telecommunications firm, calls open access the hallmark of the Internet.

“For years, the FCC has refused to require cable companies to open their networks in the same way that they required the telephone companies to open their networks to the dial-up Internet,” MAP contends. “As a result, millions of Americans who can receive broadband Internet only via cable must accept the monopoly terms of their cable company.”

The FCC’s cable ruling also exempted cable companies, the nation’s largest supplier of broadband service, to avoid regulatory obligations that other telecommunications companies must burden, including nondiscriminatory interconnection and carriage, fair contribution to the support of universal service and availability of advanced telecommunications to individuals with disabilities.

In addition, The FCC made cable companies exempt from local government franchise fees on Internet services they offer, a potential loss of millions to cash-strapped cities and states.

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