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Cable broadband regs draw high court review

FCC, Bells to slug it out before the Supremes

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When the US Federal Communications Commission (FCC) decided in 2002 that broadband Internet access via cable is legally distinct from other broadband services, and should be left largely unregulated, it set the stage for a confrontation with telcos that have a large shopping list of regulatory burdens and obligations to contend with.

In April, 2004, the Ninth US Circuit Court of Appeals upheld a previous ruling that cable broadband may be subject to common-carrier regulations, and all that this entails.

The decision contradicts an earlier FCC ruling that cable broadband (as opposed to, say, DSL) is an "information service" subject to FCC regs. The Commission essentially said that cable service is not a "telecommunications service," and is therefore exempt from Title II common-carrier regulations, and attendant public obligations.

This sort of hair-splitting did not go down well with telcos, which are required to provide various public services, including opening their infrastructure to competitors, and obligations to contribute to federal universal service programs that are supposed to bring services to rural areas and low-income subscribers. Hence their lawsuit against the cablecos and FCC, which they have, so far, won. Sort of.

As so often happens, there is irony in getting what one wishes for. The idea was to level the playing field in broadband, which now turns out rather a Pyrrhic victory, leaving telcos with little more than the Schadenfreude from knowing that their cable competitors are as much stuck with regulation as they are. Ideally, industry would like to see a somewhat different solution, in which telcos would get the same, though perhaps limited, exemptions from public responsibility that the cablecos once had, but the courts have not seen things that way.

The Supremes will hear arguments in March and issue a ruling early next Summer. ®

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