|Internet over Cable (Open Access) / Brandx|
- Computer I
- Computer II
- - Computer II Ref
- Computer III
- - Computer III Ref
- Information Service / ESP
- Net over Cable
- Net over DSL
- Net over Wireless
- Net Over Powerline
- Layered Model Regulation
- Access Charges
- - CPE
- - Info Services
- Network Info Disclosure
- Network Neutrality
- Common Carriage
Derived From: Angie A. Welborn, Charles B Goldfarb, Defining Cable Broadband Internet Access Service: Background and Analysis of the Supreme Court's Brandx Decision, CRS Report for Congress RL32985 (July 7, 2005)
FCC’s Regulatory Authority under the Communications Act
Title I of the Communications Act states that the act "applies to all interstate and foreign communications by wire or radio," [47 U.S.C. 152(a)] and the legislative history of the act indicates that the FCC has "regulatory power over all forms of electrical communication," even those not explicitly mentioned in the act. [S. Rep. No. 73-781, at 1 (1934). See also United States v. Southwestern Cable Co., 392 U.S. 157 (1968).] Title I confers upon the Commission the authority to promulgate regulations "reasonably ancillary to the effective performance of the Commission's various responsibilities" outlined elsewhere in the act.
In contrast to Title I, Title II of the Communications Act, imposes certain specific requirements on common carriers in their provision of telecommunications services. Generally, Title II requires common carriers to provide service "upon reasonable request therefor," and at a "just and reasonable" rate. [47 U.S.C. 201] Under Title II, common carriers are also required to provide services without "unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services." [47 U.S.C. 202] In addition, the act requires certain carriers to provide potential competitors with access to their network. [47 U.S.C. 251(a) (establishing general duties of common carriers) and 251(c)(2) and (3) (relating to duties of incumbent local exchange carriers). See also 47 U.S.C. 201(a) (requiring nondiscriminatory access).] Entities regulated under Title II may also be subject to additional requirements governing universal service support, the provision of disability access, public safety, consumer protection, and law enforcement access.
FCC's Declaratory Ruling and Rulemaking
In 2002, the Federal Communications Commission issued a Declaratory Ruling and Notice of Proposed Rulemaking regarding the provision of Internet services over cable connections to address the legal status of such services under the Communications Act of 1934, as amended. In the Declaratory Ruling, the Commission determined that "cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service." [17 FCC Rcd. 4798, 4799] By classifying cable modem service as an information service and not a telecommunications service or a composite service that combines an information service and a telecommunications service, the Commission precluded the mandatory application of the requirements imposed on common carriers under Title II of the Communications Act, thus allowing the provision of such services to develop with relatively few regulatory requirements.
In making the determination that cable modem services are information services and not telecommunications services, the Commission first looked to the relevant statutory definitions of each as established by the Telecommunications Act of 1996. [17 FCC Rcd. at 4820] In enacting the Telecommunications Act of 1996, Congress codified a definitional distinction between "telecommunications" (and "telecommunications service") and "information service." "Telecommunications" is defined under the act as the "transmission, between or among points, specified by the user, of information of the user's choosing, without change in the form or content of the information as sent or received." [47 U.S.C. 153(43). “Telecommunications service” is the “offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” 47 U.S.C. § 153(46).] "information service", on the other hand, is defined as the "offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information via telecommunications." [47 U.S.C. 153(20)] Noting that the statutory definitions are based on the functions that are made available with the service rather than the facilities used to provide the service, the Commission then examined the functions that cable modem service makes available to its end users. [17 FCC Rcd. at 4821]
Citing its determination in an earlier proceeding that Internet access service in general should be classified as an information service, the Commission found that since cable modem service is "an offering of Internet access service," it must also be an information service. [Id at 4822. See also In the Matter of Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11501 (April 10, 1998).] The Commission stated that "cable modem service is a single, integrated service that enables the subscriber to utilize Internet access service through a cable provider's facilities and to realize the benefits of a comprehensive service offering." [Id.] The Commission rejected the notion that cable modem service included an "offering of telecommunications service to a subscriber," conceding that while the service was provided "via telecommunications," the telecommunications component was not "separable from the data-processing capabilities of the service." [Id. at 4823]
Ninth Circuit's Decision
The Ninth Circuit determined that the question before it was whether its prior interpretation of the Telecommunications Act controlled review of the Commission's decision regarding the classification of cable modem service. Three years prior, in AT&T v. City of Portland, a three judge panel of the Ninth Circuit determined that cable modem service was not a cable service, but was both an information and a telecommunications service. In the Brand X case, the court held that it was bound to follow its own precedent regarding the classification of cable modem service rather than apply the two-part test set forth by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. for reviewing an agency's interpretation of a statute it is charged with administering. [345 F.3d 1120, 1132] Thus, the court in the Brand X case vacated the part of the Commission's Declaratory Ruling regarding the classification of cable modem service as an information service. [Id.]
Supreme Court's Decision
The Court began its decision with the conclusion that Chevron's framework should be used to evaluate the Commission's interpretation of the statute and that the Ninth Circuit should have also applied Chevron, rather than following its own construction of the statute in the Portland case. In Chevron, the Court held that "ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in a reasonable fashion." If the Court determines that the statute is ambiguous and the agency's interpretation of the statute is reasonable, "Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation."
The Ninth Circuit's decision not to apply Chevron in favor of the "conflicting construction of the [Communications] Act it had adopted in Portland" was based on an "incorrect" assumption. According to the Supreme Court, the Ninth Circuit incorrectly assumed that its construction "overrode the Commission's regardless of whether Portland had held the statute to be unambiguous." However, the Supreme Court noted that "[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion."
After determining that the Ninth Circuit erred in applying its own construction of the act, the Court moved to its Chevron analysis. As to the statute's ambiguity, the Court first looked to the definitions of "telecommunications service" and "telecommunications" in the Telecommunications Act of 1996. The Court determined that while "cable companies in the broadband Internet service business 'offe[r]' consumers an information service in the form of Internet access and they do so 'via telecommunications,'" it does not "inexorably follow as a matter of ordinary language that they also 'offe[r]' consumers the high-speed data transmission (telecommunications) that is an input used to provide this service." Restating the principle established in Chevron, the Court stated that "where a statute's plain terms admit of two or more reasonable ordinary usages, the Commission's choice of one of them is entitled to deference," and concluded that the use of the term "offer" in the definition of "telecommunications service" was ambiguous in such a way as to admit two or more reasonable ordinary usages.
After determining that the statute was ambiguous as to the classification of cable modem service, the Court then applied the second step of the Chevron analysis to determine whether the Commission's interpretation was "a reasonable policy choice for the Commission to make." The respondents in the case argued that the Commission's construction was unreasonable because "it allows any communications provider to 'evade' common-carrier regulation [under Title II] by the expedient of bundling information service with telecommunications." The Court rejected this argument, stating that it did not "believe that these results follow from the construction the Commission adopted." The Court went on to articulate its interpretation of the Commission's construction:As we understand the Declaratory Ruling, the Commission did not say that any telecommunications service that is priced or bundled with an information service is automatically unregulated under Title II. The Commission said that a telecommunications input used to provide an information service that is not "separable from the data-processing capabilities of the service" and is instead "part and parcel of [the information service] and is integral to [the information service's] other capabilities" is not a telecommunications offering.
The Court also rejected the respondent's argument that cable modem service provided simply the ability to transmit information. In so doing, the Court noted that the Internet access provided by the cable modem service allowed consumers to have access to DNS service (allowing them to reach third-party websites), the World Wide Web, electronic mail, remote terminal access, and file transfer capabilities, which effectively provides the "capability for . . . acquiring, storing . . . retrieving and utilizing . . . information" inherent in the definition of an information service. The Court therefore concluded that the Commission's construction was reasonable.
The Court also rejected respondent MCI, Inc.'s argument that the Commission's treatment of cable modem service is inconsistent with its treatment of DSL service, and is therefore "an arbitrary and capricious deviation from agency policy in violation of the Administrative Procedures Act. The Court concluded that the Commission provided a "reasoned explanation for treating cable modem service differently from DSL service," and that "the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change."
The Court's reversal of the Ninth Circuit's decision effectively revives the Commission's Declaratory Ruling classifying cable modem service as an information service. As such, cable operators providing broadband internet access are currently not subject to the myriad of regulatory requirements mandated under Title II of the act. Most notably, providers of cable modem services are not obligated to provide unaffiliated internet service providers access to their broadband platforms. In addition, providers of cable modem services remain free, at this point, from provisions governing discrimination in the provision of services; universal service support; assistance to law enforcement in the interception of communications made over the network; network accessibility to individuals with disabilities; and the protection of subscriber information.
Moreover, the Commission's classification of cable modem service as an information service appears to limit the scope of state and local regulatory authority over such services. Regulatory requirements and fees imposed on cable operators by localities pursuant to the franchising authority conferred under title VI of the act are apparently applicable only to the provision of "cable services." Classification of cable modem service as an "information service" appears to preclude the imposition of such requirements on cable operators' broadband internet offerings.
The question remains however, whether the FCC can and will impose certain regulatory requirements on the provision of cable modem service pursuant to its authority under title I of the act. In Brand X, the Court expressly acknowledged the existence of such authority and the possibility that the Commission might "impose special regulatory duties on facilities-based ISP's under its Title I ancillary jurisdiction." The FCC is currently examining whether and which of such duties should be imposed as part of two proceedings pending before it.
Cable Modem Service NPRMCS Docket No. 02-52
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:
- Encourage the ubiquitous availability of broadband access to the Internet to all Americans.
- Ensure that broadband services exist in a minimal regulatory environment that promotes investment and innovation.
- Develop an analytical framework that is consistent, to the extent possible, across multiple platforms.
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 1063, email: sgarner 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,
Cable Open Access Proceeding
Released Sept 28, 2000 Docket 00-185
In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 F.C.C.R. 4798 (2002) , affirmed National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005)
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 Commission concluded 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 conclusion that 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 to the 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)
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 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 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
- Supreme Court
- National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005).
- FCC v. BrandX. Decided 06/27/2005, S.Ct. reversing the 9th Circuit, sustaining the decision of the FCC. Next step, Internet over Cable Notice of Proposed Rulemaking. 545 U.S. 967 (2005). Cornell
- Brand X and Broadband, Firstmile.us 7/8/2005
- Will the Internet be open or closed?, Muni 7/8/2005
- Court Rejects Brand X In Cable Access Case, Americas Network 6/29/2005
- COMMISSIONER ABERNATHY'S STATEMENT REGARDING THE SUPREME COURT'S DECISION IN BRAND X. STMT, FCC 6/29/2005
- STATEMENT OF COMMISSIONER COPPS IN RESONSE TO SUPREME COURT DECISION IN BRAND X INTERNET SERVICES. STMT CMMR, FCC 6/29/2005
- COMMISSIONER JONATHAN S. ADELSTEIN ISSUES STATEMENT IN RESPONSE TO U.S. SUPREME COURT BRAND X DECISION. STMT, FCC 6/29/2005
- CHAIRMAN KEVIN J. MARTIN'S ANNOUNCEMENT REGARDING THE SUPREME COURT'S DECISION IN BRAND X. STMT, FCC 6/29/2005
- FCC to seek parity after net ruling, Free Press 6/29/2005
- NAT'L CABLE & TELECOMM. ASSN.v.BRAND X INTERNET SERVICES. Decided 06/27/2005, S.Ct. 6/29/2005
- If Someone Asks You About BrandX..., Susan Crawford 6/29/2005
- Black Monday, Tales from the Sausage Factory 6/29/2005
- Debate on cable's Net lines continues, USAToday 6/29/2005
- March 29 Oral Argument (MGM v. Groskter is the same day)
- National Cable & Telecommunications Assn. v. Brand X Internet Services SCt Transcript, S.Ct. 12:00:00 AM
- Brief for the Federal Petitioners
- Brief for NCTA 1/18/2005
- Amicus supporting petititioners: TIA
- Amici supporting respondents: ACLU, State of New Jersey, AARP, NARUC
- ABA listing of briefs
- Brief for respondents BellSouth and SBC in support of petitioners
- Brief for respondents the Verizon Telephone Cos. et al. in support of reversal
- Brief for respondents Earthlink, Inc., Brand X Internet Services, and Center for Digital Democracy
- US Supreme Court Order Granting Cert, S.Ct. 12/7/2004
- Supreme Court asks why cable broadband lacks regulation, Standard 4/1/2005
- Is an 'open' Internet a doomed concept? (Kyle Dixon), CNET 4/1/2005
- Supreme Court to hear cable modem case, Standard 3/29/2005
- Court weighs cable modem jurisdiction, MSNBC 3/29/2005
- Broadband scuffle reaches Supreme Court, CNET 3/25/2005
- Supreme Court To Hear Cable Modem Case, Ecomm Times 12/7/2004
- High Court To Hear Broadband Cases, Topix 12/7/2004
- Chairman Powell's Statement on the Government's Appeal of the 9th Circuit's Cable Modem Ruling., FCC 9/7/2004
- FCC Brandx Petition before S Ct, FCC 9/7/2004
- Motion to Stay
- Motion to stay granted pending Supreme Court review
- Brand X Internet Services, et al. v. FCC & USA Motion of the FCC to Stay the Mandate Pending the Filing of Petitions for A Writ of Certiorari, No. 02-70518 and consolidated cases (9th Cir.)
- Petition for Rehearing
- March 31, 2004, the 9th Circuit denied the FCC's Petition for a rehearing
- On March 31, 2004, the 9th Circuit denied the FCC's Petition for a rehearing. Not a single judge voted in favor of it. The Court has subsequently granted a stay of its order until a possible appeal to the Supreme Court is exhausted. NCTA is reportedly appealing but, due to a split in Administration policy - DOJ wants this to be a telecom service so CALEA will apply - the Administration is not resolved on whether it should appeal.
- FCC Petition to 9th Circuit for Hearing En Banc
- Brand X Internet Services et al. v. FCC & USA Opposition of FCC to Petition For Rehearing En Banc, No. 02-70518, et al. (9th Cir.)
- FCC COMMISSIONER COPPS REACTS TO THE 9TH CIRCUIT'S BROADBAND DECISION, FCC 4/2/2004
- CHAIRMAN POWELL REACTS TO 9TH CIRCUIT CABLE MODEM DECISION, FCC 4/2/2004
- Independent ISPs Vow Open Access Fight, Internet News 4/16/2004
- Court ruling points way to broadband regulation, CNET 4/2/2004
- FCC mulls appeal in cable access dispute, CNN 4/2/2004
- FCC Looks at Cable Access Dispute, Mercury 4/2/2004
- Court Sticks to Its Ruling on Broader Cable Internet Access, Wash Post 4/2/2004
- ISP choice may get boost, USA Today 4/2/2004
- FCC seeks to overturn cable broadband ruling, CNET 12/5/2003
- Court grants FCC extension on cable ruling, CNET 11/21/2003
- 9th Circuit Appeal
- BrandX v FCC, 345 F.3d 1120 (9th Cir 10/6/2003) (based primarily on Stari Decisis; the 9th Cir already decided this in Portland).
- Reversed in Part and Affirmed in Part by the 9th Circuit Court of Appeals. BrandX v FCC, 9th Cir 10/6/2003 (based primarily on Stari Decisis; the 9th Cir already decided this in Portland). Appealed in the Ninth Circuit Court by the Media Access Project, Verizon, Earthlink, BrandX, Alliance for Local Organizations Against Preemption, East Hempfield Township and four other municipalities. The FCC has petitioned for rehearing before the 9th Circuit - a decision is expected soon (maybe, its up to the court) (Notably, the USDOJ did not file a brief before the 9th Circuit on the FCC's behalf. It is theorized that this is connected to the FBI's position on CALEA - If Internet over Cable is an information service, CALEA does not apply - the FBI wants CALEA to apply)
- Statement of FCC Chairman Michael Powell on 9th Circuit Cable Modem Decision., FCC 10/9/03
- EarthLink Statement on the Ninth Circuit Ruling on Cable Internet, PRNewswire 10/6/03
- May 2003 Oral Arguments
- Feb 3, 2003 Reply briefs of intervenors
- Jan 20, 2003 Petitioners' reply briefs
- Dec 30, 2002 Non-aligned intervenors
- Dec 9, 2002 Intervenors supporting respondents
- Nov 25, 2002 FCC Brief Due
- Oct 24, 2002 Intervenors supporting petitioners
- Oct 10, 2002 Petitioners's briefs (ALOAPs) due
- Sept 13, 2002 Petitioners Brief's due
- July 15, 2002 Court approves ALOAP's petition to Intervene
- March 25, 2002 MAP, Earthlink, and Verizon file suit
- March 14, 2002 FCC Releases Declaratory Ruling
- Sept 28, 2000 FCC Initiates Inquiry
- Media Access Project Statement. (3/25/02)
- Stanford Cyberlaw Summary of proceeding
- FCC Office General Counsel Litigation Division
- Brand X Petitions for Arbitration of Interconnection (BrandX has filed a petition to arbitrate interconnection with AT&T and TW claiming interconnection rights, pursuant to the 9th Circuit decision that cable companies are telecom carriers).
- ACLU Amicus Brief in Brand X Internet Services vs. FCC
- Media Access Project, Verizon, Earthlink originally filed in DC Cir. Brandx filed appeal in 9th Cir. Pursuant to lottery, the 9th Circuit was selected as the court to hear the appeal.
- Alliance for Local Organizations Against Preemption Press Release | NATOA Info | NATOA Action Alert |
- East Hempfield Township and four other municipalities | Minutes of East Hempfield meeting | Their appeal was originally filed in the Third Circuit. FCC filed a motion to consolidate in the 9th Circuit.
Prior to the federal activity was activity on the state level, with most notably the AT&T v Portland decision: See California :: Colorado :: Florida :: Maryland :: Massachusetts :: Oregon (with the early AT&T v Portland which held that cable modem service is a telecom service):: Pennsylvania :: Texas :: Virginia :: Washington :: Canada
Government Activity (other)
- NTIA, The NII Field Hearings on Universal Service and Open Access: America Speaks Out (September 1994)
- CRS Report RL32958, Defining Cable Broadband Internet Access Service: Background and Analysis of the Supreme Court's Brand X Decision, by R. Eric Petersen and Sula P. Richardson.
- Thomas Nachbar, Open Access, TPRC 2006
- M.A.P. Overview: Open Access over Cable Infrastructure, AFCN 12/7/2004
- BOOK: Mark Cooper, Open Architecture as Communications Policy (472 pages), Stanford Law School 11/3/2004
- Christopher Yoo, Would Mandating Broadband Network Neutrality Help or Hurt Competition? A Comment on the End-to-End Debate, SSRN 2/18/2004
- Battle to control Internet threatens open access By Michael J. Copps, Mercury 12/16/2003
- James Speta, FCC Authority to Regulate the Internet: Creating It and Limiting It, SSRN 2/18/2004
- Daniel F. Spulber, Christopher S. Yoo, Access to Networks: Economic and Constitutional Connections, TPRC 9/13/03
- Margit A. Vanberg , Internet Regulation: Monopolistic Bottlenecks in Internet Service Markets?, TPRC 9/13/03
- Eszter Hargittai , Search and You Shall Find? The Effects of Online Commercial Interests on People's Ability to Find Content on the Web, TPRC 9/13/03
- Eli M. Noam , The Internet: Still Wide Open and Competitive?, TPRC 9/13/03
- Ashish Shah, Douglas C. Sicker, Dale Hatfield , Thinking About Openness in the Telecommunications Policy Context, TPRC 9/13/03
- William H. Lehr, R. Glenn Hubbard ,Economic Case for Voluntary Structural Separation, TPRC 9/13/03
- Mark Cooper, Steve Cooper , Hope and Hype v. Reality: The Role of the Commercial Internet in Democratic Discourse and Prospects for Institutional Change, TPRC 9/13/03
- Michael Rosenthal, Open Access from the EU Perspective, IJCLP 5/14/03
- Open Access from the EU Perspective, IJCLP 1/21/03
- E. W Comstock,. & J.W. Butler, Access denied: The FCC’s Failure to Implement Open access as Required by the Communication Act. Journal of Communications Law and Policy, Winter. 2000
- Cole Raywood and Braverman Analysis of FCC Decision
- Miller and Van Eaton PLLC on Open Access