In FCC v. Brand X the Supreme Court sided with the FCC's finding that Cable Internet Service Providers (ISPs) were classified as "information providers" instead of "telecommunication providers" and thus were not subject to the Telecommunications act of 1996.

Here's what boggles me about this decision. In the majority opinion, Thomas delares a "telecommunication service" (and thus subject to title II of TCA 1996) as follows:

Now, one of the major beneficiaries of the ruling is Time Warner. Taking a look at their home page for my area (Charlotte) reveals one of their 3 big services to be a digital phone offering. How exactly does this not qualify under the above definition?

Questions for debate:

1) Do you agree with the 6-3 opinion that Cable ISP's are not within the definition of a "telecommunication service" and thus not subject to the Title II guidelines of the Telecommunications Act of 1996?

2) In spite of this opinion, do you believe that the FCC should amend its ruling and include Cable operators under the Title II guidelines (ie, should require them to lease lines for other ISP's to operate)? Why or why not?

1) Do you agree with the 6-3 opinion that Cable ISP's are not within the definition of a "telecommunication service" and thus not subject to the Title II guidelines of the Telecommunications Act of 1996?

Doc, since I've worked telecom since 1993, the reasoning comes in with the expansion of the term telecom: telephone communications. Back when the TA was passed in 1996, IP telephony was just an idea, and so wasn't part of the regulation package. Even today, IP telephony isn't used enough to warrant regulation.

There are a lot of weaknesses to the TA of 1996 that thwarted the anti-monopoly sense of the law, such as baby bells still charging for short-haul access, up to 10 cents per minute. Cable and microwave wireless bypass this advantage, as does cellular, perhaps the greatest breakthrough from the baby bells in regards to long distance. Over fifty percent of telephone users in the US have cellular instead of, or in addition to, land lines.

2) In spite of this opinion, do you believe that the FCC should amend its ruling and include Cable operators under the Title II guidelines (ie, should require them to lease lines for other ISP's to operate)? Why or why not?

I really don't see why anyone would want to lease cable bandwidth. Why not go to the source, the Internet backbone providers? Or if a small outfit, why not do microwave wireless? I work with a guy who runs his own wireless ISP. I'd not go into that business myself (need redundancy and 24x7, not cheap startup costs), but right now it is possible to do this on a ma/pa basis.

Even cable has to lease the backbone access -- cable only provides the short-haul broadband. Meanwhile, Verizon is installing short-haul fiber optic around metro areas, thus bypassing baby bells with a separate network. I don't see any reason to regulate when there are four options: DSL, cable, wireless, and fiber optic (coming someday to your neighborhood, if metro).

Thanks for the info AM- I seem to be as clueless about this issue in the end as the judiciary- I think this highlights the weakness of judicial and legislative tech knowledge when it comes to this so very fast changing tech issue.

In the end, I think AM may have pointed out that this ruling is almost moot- there is competition and alternatives, thus there is a way around the ruling ( I think?) that wil not harm consumers in the end.

Not sure I'd agree with that statement. You have 3 big players in the residential VoIP market right now: Vonage, Cable Vision and AT&T (I'm sure there are a few others). According to this, there are at least 1 million VoIP subscribers in the US, and that article doesn't take into account Time Warner or Comcast numbers. Granted, VoIP hasn't achieved the pervasiveness of cellular but residential VoIP is arguably less than 5 years old, whereas cellular service has at least 4 times that maturity.

Why lease DSL bandwidth? Because the bells own the infrastructure that get the lines into the houses. Same with cable. I can't answer on Wi-fi or Microwave as I don't know the cost margins vs. cable/dsl.

I found myself agreeing yet again with Scalia on this recent decision. Though I have to admit, Scalia, Breyer and Ginsburg make awfully strange bedfellows on a dissent

edit: missed CR's comments whilst I type

In the residential space, I would argue harm is still possible. Most consumers in the broadband space are still limited by cable vs. DSL, with a few satellite options in between. In the DSL space, you do have a bevy of choices, even though the bells still own the lines. In cable? 1 choice, that's it.

I think AM's analysis is correct in the commercial internet space, but residential still gains some harm from maintaining a monopoly on 1 of the 2 medium options for broadband internet.

Questions for debate:

1) Do you agree with the 6-3 opinion that Cable ISP's are not within the definition of a "telecommunication service" and thus not subject to the Title II guidelines of the Telecommunications Act of 1996?

No, it seems that since the FCC has the money, they're going to take this to court as many times as they need to till they get the ruling that benefits them. Didn't the Ninth Circuit Court of Appeals already hear this case in AT&T v. City of Portland? In that case the court ruled that cable modem services provided a combination of telecommunications services and information services and, therefore, are subject to the regulations imposed by both classifications. The FCC disregarded this decision and it ended up in the Ninth Circuit again and they ruled the same way again.

Furthermore, I believe that Brand X's main argument was that their are places were Broadband is the only option for some people. DSL, wireless, dial-up are all alternatives as AM stated but if that's the only game in town, it seems this ruling may end up costing those people a pretty penny.


2) In spite of this opinion, do you believe that the FCC should amend its ruling and include Cable operators under the Title II guidelines (ie, should require them to lease lines for other ISP's to operate)? Why or why not?
I'm not sure on this one. AM does bring up a good point about "going to the source" but I wonder what the cost difference is of "going to the source" or leasing is. Perhaps the start up cost or cost of entry into the market is too great while as leasing provides a cheaper alternative.


Regardless, whether it's DMCA, Patriot Act, Echelon, VoIP etc, I am leary anytime the courts make a decision. IT has its own culture and I don't think judges who haven't grown up and lived this stuff or worked in the industry will have a hard time fully grasping the big picture behind some (most) technology.

1) Do you agree with the 6-3 opinion that Cable ISP's are not within the definition of a "telecommunication service" and thus not subject to the Title II guidelines of the Telecommunications Act of 1996?



This is just bizarre legal sophistry. No matter the technology, data is being transmitted. That said, telecom does hold a special legal position since it was given "special" (read: monopolistic) rights by the government throughout most of the 20th century. The regulation for telecom exists (from 1996 onwards) so that a robust competitive market for data transmission (voice and other data) would grow without being stifled by those same baby bells who were given their special status previously. For the most part, I'd say this has happened and is happening now (but perhaps not fast enough).

My belief is that if and only if a company providing data bandwidth has not been supported by government intervention for its growth, then there ought to be commensurately less regulation. Thus, I agree with the results of both the FCC and majority court decision if not the intention behind them. I strongly dislike what I see as a capricious set of definitions for what is and is not a "telecommunications service". However, I do believe that as far as telecommunications is concerned, the more hands-off the FCC can be the better.