The Supreme Court handed cable a major victory Monday, holding in National Cable & Telecommunications Association vs. Brand X Internet Services that EarthLink Inc. and other Internet-service providers don’t have mandatory access rights to cable’s $100 billion digital pipeline passing more than 100 million American homes.
In vindicating the Federal Communications Commission’s hands-off approach to cable-modem service, the court’s 6-3 ruling prompted the phone industry to demand the same minimalist approach for their digital-subscriber-line service.
Unlike cable, DSL has been highly regulated, with unaffiliated ISPs entitled to nondiscriminatory access to phone-company transmission facilities.
Verizon Communications Inc. vice president Tom Tauke called on the FCC to “act immediately to treat all competing broadband service alike.”
United States Telecom Association president Walter McCormick, speaking for the broader telephone industry, said the FCC/cable victory set the stage for the commission "to finish this important job by crafting similar rules for all broadband providers."
FCC chairman Kevin Martin said in a prepared statement that the Brand X ruling meant that the agency “can now move forward quickly to finalize regulations” helping to spur broadband deployment and promoting a uniform regulatory regime.
In a conference call, NCTA president Kyle McSlarrow told reporters that the trade group would not try to stymie the Bells on broadband-access parity at the FCC or on Capitol Hill, saying that his mantra for weeks has been that like services should be treated alike.
Martin’s ability to deregulate DSL is hampered because the agency is divided 2-2 between Republicans and Democrats, and the two Democrats have consistently been hostile to letting market forces shape the broadband Internet-access market.
Martin is “going to need to get a fifth commissioner,” said Carol Mattey, former deputy chief of the FCC’s Wireline Competition Bureau and now a director at Deloitte & Touche LLP.
Senate Commerce Committee chairman Ted Stevens (R-Alaska) said he would review the Brand X ruling in the context of his effort to rewrite the Telecommunications Act of 1996.
And House Energy and Commerce Committee chairman Joe Barton (R-Texas) said that while he was pleased with the Brand X ruling, “Congress needs to remove the ambiguity regarding what broadband services are and how they should be regulated.”