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Monday, Nov 23, 2009
On March 13 the FCC commissioners ruled, 3-1, that cable broadband is an "information service" rather than a "telecommunications service." By toggling definitions just so, the commission cleverly managed to exempt cable broadband -- widely acknowledged as the key communications network of the future -- from all the rules that apply to telecommunications services under the Telecommunications Act of 1996. The most important piece of telecom legislation in 60 years, the act, among other things, requires telecommunications companies to open up their networks to competition.
This open-access requirement is the reason you can choose from among hundreds of long-distance carriers and from among thousands of ISPs for dial-up access to the Internet. Under the law, local phone companies must allow other companies to sell services over the phone lines, even if they compete with the phone company's own services or products. The Telecommunications Act also forbids network owners from meddling with content on their network. This is why narrowband users -- and thus far, DSL users -- can fax, or talk, or download music off the Internet without permission or fear of interference from the local phone company. The rules were written to prevent the owners of the telephone wires from using their power over the lines to control content or stifle competition.
Over the past several years, as cable companies have begun offering services generally considered to be telecommunications -- Internet access, digital telephone service, video conferencing -- there has been an increasingly bitter battle between cable companies and consumer advocates over whether open-access requirements and other regulations that apply to telecommunications should also apply to cable. The March ruling settled the question: Telecom rules won't apply to cable broadband.
The 1996 act defines "telecommunications" as simply "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 and received." Consumer advocates argue this should apply to cable broadband. Although the act, and the FCC, have long referred to high-speed Internet access as "advanced telecommunications services," the FCC decided in its March ruling that cable broadband is really better described as an information service. Although technically still under FCC jurisdiction, there are no significant regulations on information services, which include services like voice mail. As a "declaratory ruling," the commission reached its decision without a hearing or public comment period.
FCC commissioner Michael Copps, the lone Democrat on the four-member commission, wrote in his dissenting statement that the ruling amounted to a breach of the Constitution.
"Today we take a gigantic leap down the road of removing core communications services from the statutory frameworks established by Congress," Copps wrote, "substituting our own judgment for that of Congress and playing a game of regulatory musical chairs by moving technologies and services from one statutory definition to another. Last month I remarked that we were out-driving the range of our headlights. Today I think we are out-flying the range of our most advanced radar."
But the FCC is not stopping there.
For years there has been clamoring from all sides that the same regulations should apply to all types of broadband access, although opinions differ on what the rules should be, or if there should be any at all. Public policy for broadband is particularly confusing, because the service is offered over cable, phone and wireless connections, and each of those sectors has traditionally had a separate set of regulations. Chairman Powell has made it plain he would like to clear up the confusion and have consistent rules.
In February, the FCC proposed lifting the current open-access requirement for DSL service. No decision has been reached yet, but now that the FCC has ruled that cable companies will not have to open their networks to competition, and given Powell's enthusiasm for consistent regulations -- or lack of them -- it seems a safe bet the FCC will let the Baby Bells shut out their competitors, too. The logic is essentially that one monopoly deserves another.
The prospect of broadband provision reduced to a few competitors, each with a monopoly on their own platform, scares the hell out of consumer groups that have fought the creation of corporate monopolies over media and information sources for years. Because media conglomerates such as AOL have begun buying up the pipes that deliver the content they produce, the situation seems even more ominous. In short, consumer advocates worry these companies will mess with content in order to force the Internet to serve their own interests. They argue, for example, that a cable company will never allow streaming video to flow over its cable broadband lines if it competes with its cable television service. Even the right to "click through" to the Web won't be guaranteed, they warn, and companies are likely to turn the Internet into walled gardens of their own content -- think AOL with no escape hatch to Google.
"The path the FCC is currently on will change the Internet that you know," said Cheryl Leanza of the Media Access Project (MAP), a public interest telecommunications law firm. "Currently, rules prevent phone companies from controlling content in any way. There is no content protection for cable, and the FCC has proposed to take away the protections on content discrimination for DSL. The impact will be breathtaking."
