Supreme Court to Hear Broadband Access Case

The U.S. Supreme Court said Friday it would determine if cable modem
providers will have to share their fiber optic lines with other Internet
service providers (ISPs). The case, which will probably be heard sometime
this spring, could have a major impact on the Federal Communications
Commission’s (FCC) broadband policy.

“High-speed Internet connections are not telephones, and I’m glad the
Supreme Court has agreed to review the 9th Circuit’s ruling that they
are,” FCC Chairman Michael Powell said in a statement late Friday afternoon.

Powell said if the 9th Circuit decision were allowed to stand, there would
be “grave consequences for the future and availability of high-speed
Internet connections in this country.”

EarthLink issued a statement predicting victory for the ISPs.

“We are confident that we will prevail on the merits and that the Supreme
Court will affirm the 9th Circuit’s ruling that cable modem service
contains a telecommunications service,” said Dave Baker, EarthLink’s vice president of
law and public policy. “This will settle the matter once and for all and
finally give cable modem users a choice in high-speed Internet providers.”

In March of 2002, the FCC ruled cable modems are an information service and
not subject to the same rules and regulations as incumbent telephone
companies’ DSL broadband, which is classified as a telecommunications
service. Unlike the heavily regulated services of the incumbents, the FCC
decision effectively exempted cable broadband from regulation by the FCC and
state public utility commissions.

The FCC ruling was almost immediately challenged by ISPs who want access to
the cable broadband market and public interest groups who are fighting for
an “open access” Internet.

The 9th Circuit Court of Appeals in San Francisco overturned the FCC
decision last year, ruling cable modems have a telecommunications portion
and should be regulated in the same manner as incumbents. The FCC appealed
the ruling.

The FCC decision two years ago marked a significant shift by the agency
under Powell, who has long supported multiple platform competition for
broadband services. In February of 2003, 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.

ISPs and consumer groups contend the FCC is intent on creating broadband
monopolies for the cable and telephone industries.

“While the cable industry is intent on transforming the Internet into an
extension of its tightly controlled cable business, it is critical that we
maintain an open, nondiscriminatory platform for the exchange of ideas and
information,” Jeff Chester, executive director of the Center for Digital
Democracy, said in a statement.

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