Broadband battle: what's in a name?

• Author: Sanchez, Julian
• Position: Citings

IF A CABLE company provides high-speed Internet access, is it offering a "telecommunications service" or an "information service"? The future of broadband could turn on how the Supreme Court answers that question.

"Telecommunications services," such as phone companies, are subject to "open access" rules requiring them to make their facilities available to competitors. Hoping to encourage cable companies to invest in broadband, the Federal Communications Commission decided in 2002 to classify cable Internet as a relatively unregulated "information service."

But in what outgoing FCC Chairman Michael Powell has called "the scariest and worst decision that exists on the books today for the future of the Internet," the U.S. Court of Appeals for the 9th Circuit overruled the regulatory body in Brand X internet Services v. FCC. The Supreme Court agreed in December to hear an appeal by the National Cable & Telecommunications Association, with oral arguments slated for late March.

The passions of partisans on both sides of this debate are stoked by deep disagreements over the preconditions for competition and free speech. Mark Cooper of the Consumer Federation of America, one of the petitioners, argues that the open access principle is "deeply embedded in the DNA of capitalism," noting that "the existence of...