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CS  Docket  No.  02-52  Comments due June 17, 2002 
Reply comments due July 16, 2002.August 6, 2002.		 Ex Parte Period  
Cable Modem Service NPRM Express Your Views!  Comments can be filed with the FCC's Electronic Comment Filing System.  FAQ: How to participate in FCC Proceedings.
The FCC also adopted a Notice of Proposed Rulemaking to examine:
  • Certain issues in light of the FCC's recent initiation of the Wireline Broadband NPRM, including whether there are legal or policy reasons why it should reach different conclusions with respect to wireline broadband and cable modem service. 
  • The scope of the FCC's jurisdiction to regulate cable modem service, including whether there are any constitutional limitations on the exercise of that jurisdiction. 
  • Whether, in light of marketplace developments, it is necessary or appropriate at this time to require multiple ISP access. 
  • The role of state and local franchising authorities in regulating cable modem service. 
The FCC said that the ultimate resolution of this item will promote broadband deployment, which should result in better quality, lower prices and more choices for consumers. In considering the issues raised by the original Cable Modem NOI and today's Notice, the FCC is guided by the following principles and policy goals: With respect to state and local issues, the Notice makes three significant tentative conclusions:
  • The statute does not provide a basis for a local franchising authority to impose an additional franchise for the provision of cable modem service. 
  • The provision of cable modem service should not affect the rights of cable operators to access the public rights-of-way. 
  • In the interest of national uniformity, the FCC should exercise its forbearance authority in light of the U.S. Court of Appeals for the Ninth Circuit's decision in the Portland case, which classified cable modem service as both an "information service" and "telecommunications service." 
Regarding franchise fees, the FCC notes that the law limits franchise fees to 5 percent of the gross revenues the cable operator receives from cable service. The FCC said that revenues from cable modem service should not be used in computing this franchise fee ceiling.		 FCC High Speed Internet NOI Website

FCC Press Release

Released: 04/19/2002. PLEADING CYCLE ESTABLISHED FOR NPRM REGARDING THE APPROPRIATE REGULATORY TREATMENT FOR BROADBAND ACCESS TO THE INTERNET OVER CABLE FACILITIES. (DA No. 02-909). (Dkt No 02-52). Comments Due: 06/17/2002. Reply Comments Due: 07/16/2002. MB. Contact: Steve Garner at (202) 418-1063, email: sgarner@fcc.gov DA-02-909A1.doc DA-02-909A1.pdf DA-02-909A1.txt, fcc 4/22/02

FCC 02-77 Order: Text | Word | Acrobat

Fed Register Notice 
April 17, 2002
 

  • INQUIRY CONCERNING HIGH-SPEED ACCESS TO THE INTERNET OVER CABLE AND OTHER FACILITIES; INTERNET OVER CABLE DECLARATORY RULING. /APPROPRIATE REGULATORY TREATMENT FOR BROADBAND ACCESS TO THE INTERNET OVER CABLE FACILITIES. Adopted rules in this proceeding. (Dkt No. 00- 185, 02-52). Action by: the Commission. Adopted: 03/14/2002 by NPRM. (FCC No. 02-77). CMMR, 

    • APPROPRIATE REGULATORY TREATMENT FOR BROADBAND ACCESS TO THE INTERNET OVER CABLE FACILITIES. Granted motion for extension of time of the National Cable and Telecommunications Association for a three-week extension of the date for filing reply comments, to August 6, 2002. Action by: Chief, Media Bureau. Reply Comments Due: 08/06/2002. Adopted: 07/05/2002 by ORDER. (DA No. 02-1595). MB, 
     
    Released Sept 28, 2000
    Docket 00-185    		 Comments due Dec 1, 2000. 
    Replies due Jan 10, 2001 FCC PN    		 Affirmed by the Supreme Court. NCTA v BrandX.

    Cable Open Access Proceeding

    		 Comment period has closed but comments can efstill be filed as ex parte comments.  Comments can be filed online at the FCC's Electronic Comment Filing System (note docket number) FAQ: How to participate.

    In September 2000, the Commission initiated a rule-making proceeding to, among other things, apply these classifications to cable companies that offer broadband Internet service directly to consumers. In March 2002, that rulemaking culminated in the Declaratory Ruling under review in these cases. In the Declaratory Ruling, the Commission concluded that broadband Internet service provided by cable companies is an “information service” but not a “telecommunications service” under the Act, and therefore not subject to mandatory Title II common-carrier regulation. In support of this conclusion, the Commission relied heavily on its Universal Service Report. See Declaratory Ruling 4821–4822, ¶¶36–37 (citing Universal Service Report or Report). The Universal Service Report classified “non-facilities-based” ISPs—those that do not own the transmission facilities they use to connect the end user to the Internet—solely as information-service providers. See Universal Service Report 11533, ¶67. Unlike those ISPs, cable companies own the cable lines they use to provide Internet access. Nevertheless, in the Declaratory Ruling, the Commission found no basis in the statutory definitions for treating cable companies differently from non-facilities-based ISPs: Both offer “a single, integrated service that enables the subscriber to utilize Internet access service . . . and to realize the benefits of a comprehensive service offering.” Declaratory Ruling 4823, ¶38. Because Internet access provides a capability for manipulating and storing information, the Commissionconcluded that it was an information service. Ibid.

    The integrated nature of Internet access and the high-speed wire used to provide Internet access led the Commission to conclude that cable companies providing Internet access are not telecommunications providers. This conclusion, the Commission reasoned, followed from the logic of the Universal Service Report. The Report had concluded that, though Internet service “involves data transport elements” because “an Internet access provider must enable the movement of information between customers’ own computers and distant computers with which those customers seek to interact,” it also “offers end users information-service capabilities inextricably intertwined with data transport.” Universal Service Report 11539– 11540, ¶80. ISPs, therefore, were not “offering . . . telecommunications . . . directly to the public,” §153(46), and so were not properly classified as telecommunications carriers, see id., at 11540, ¶81. In other words, the Commission reasoned that consumers use their cable modems not to transmit information “transparently,” such as by using a telephone, but instead to obtain Internet access.

    The Commission applied this same reasoning to cable companies offering broadband Internet access. Its logic was that, like non-facilities-based ISPs, cable companies do not “offe[r] telecommunications service to the end user, but rather . . . merely us[e] telecommunications to provide end users with cable modem service.” Declaratory Ruling 4824, ¶41. Though the Commission declined to apply mandatory Title II common-carrier regulation to cable companies, it invited comment on whether under its Title I jurisdiction it should require cable companies to offer other ISPs access to their facilities on common-carrier terms. Id., at 4839, ¶72. Numerous parties petitioned for judicial review, challenging the Commission’s conclusionthat cable modem service was not telecommunications service. By judicial lottery, the Court of Appeals for the Ninth Circuit was selected as the venue for the challenge.

    The Court of Appeals granted the petitions in part,vacated the Declaratory Ruling in part, and remanded tothe Commission for further proceedings. In particular, the Court of Appeals vacated the ruling to the extent it concluded that cable modem service was not “telecommunications service” under the Communications Act. It held that the Commission could not permissibly construe the Communications Act to exempt cable companies providing Internet service from Title II regulation. See 345 F. 3d, at 1132. Rather than analyzing the permissibility of that construction under the deferential framework of Chevron, 467 U. S. 837, however, the Court of Appeals grounded its holding in the stare decisis effect of AT&T Corp. v. Portland, 216 F. 3d 871 (CA9 2000). See 345 F. 3d, at 1128– 1132. Portland held that cable modem service was a “telecommunications service,” though the court in that case was not reviewing an administrative proceeding and the Commission was not a party to the case. See 216 F. 3d, at 877–880. Nevertheless, Portland’s holding, the Court of Appeals reasoned, overrode the contrary interpretation reached by the Commission in the Declaratory Ruling. See 345 F. 3d, at 1130–1131.

    We granted certiorari to settle the important questions of federal law that these cases present. 543 U. S. __ (2004).

    -- NCTA v. BrandX, No. 04-277, 545 U.S. __, Slip at 7 (S.Ct. June 27, 2005)

    		FCC Classifies Cable Modem Service as "Information Service": Initiates Proceeding to Promote Broadband Deployment and Examine Regulatory Implications of Classification.
    Statements: Powell | Abernathy | Copps
    FCC 02-77 Order: Text | Word | Acrobat

    FCC Press Release Sept 28, 2000

    Notice of Inquiry  Text | Word97 | Acrobat | Fed. Reg. Notice | FCC Public Notice - Text - Word |

    FCC Open Access NOI Webpage

    Petitions incorporated in this proceeding:

    USTA Petition requesting declaratory ruling that cable operators must contribute to universal service.  (filed Sept 26, 2000).

    The US Internet Industry Association (USIIA) on July 7, 2000 filed a petition with the FCC asking that cable Internet services be required to fulfill their obligations to open their networks to competition.  Read the USIIA News Release, or review the FCC Filing.
    • Assistant Secretary Nancy Victory spoke on "Net Neutrality: Let's Look Before We Leap" at the Progress and Freedom Foundation Conference., NTIA 6/30/03
    • U.S. Representative Edward Markey's statement on the ruling.
    • FCC Press Release "FCC CLASSIFIES CABLE MODEM SERVICE AS "INFORMATION SERVICE"

      •  
        Initiates Proceeding to Promote Broadband Deployment and Examine Regulatory Implications of Classification

        Washington, D.C. - Today, the Federal Communications Commission (FCC) adopted another major rulemaking, part of a series of actions, designed to promote widespread deployment of broadband services. The FCC settled a debate over the regulatory classification of cable modem service and launched a proceeding to examine the proper regulatory treatment of this service.

        In a Declaratory Ruling adopted today, the FCC concluded that cable modem service is properly classified as an interstate information service and is therefore subject to FCC jurisdiction. The FCC determined that cable modem service is not a "cable service" as defined by the Communications Act. The FCC also said that cable modem service does not contain a separate "telecommunications service" offering and therefore is not subject to common carrier regulation.
        . . . . .
        Today's decision follows five other related proceedings - the Cable Modem NOI, the National Performance Measures NPRM, the Incumbent LEC Broadband Notice, the Triennial UNE Review Notice and, most recently, the Wireline Broadband NPRM. These proceedings, together with today's actions, are intended to build the foundation for a comprehensive and consistent national broadband policy.

        -FCC-

    • The Commission at its Open Meeting approved of the Open Access NOI, granting the FCC staff editorial privileges.  This means that the document is in final draft form such that the Commissioner's are satisfied to vote on the document - however, not all editorial revisions have been completed.  The final version of the document should be release for public comment in the near future.
    • FCC CHAIRMAN TO LAUNCH PROCEEDING ON "CABLE ACCESS" KENNARD SAYS TIME IS RIGHT TO ESTABLISH RECORD ON MARKETPLACE DEVELOPMENTS. The Chairman of the FCC announced today that he will propose that the FCC begin a formal proceeding on the issues of multiple Internet service providers gaining access to a cable company's platform. News Media Contact: Michelle Russo (202) 418-2358. CSB.  Press Release
    • "Finally, you must open your systems. Some MSOs have agreed to ensure that their broadband platforms will accommodate multiple ISPs. Progress has been made, but I hope you also will remember the small ISPs who can offer your customers the diversity and special attention of small-scale operators."  Ch Kennard, "Lessons from the Front: When is Pulling the Plug the Right Answer?"  Remarks by Chairman William E. Kennard Federal Communications Commission Before the National Cable Television Association New Orleans, Louisiana May 9, 2000

     

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    • NTIA, The NII Field Hearings on Universal Service and Open Access: America Speaks Out (September 1994)

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