News

When Brand X, a California ISP, gets its day in the Supreme Court on Tuesday, there will be a lot more at stake than whether the company can get access to cable lines. In fact, depending on the details of the court decision, the case could determine the way in which the Federal Communications Commission regulates phone and information companies.

At the core of the case is Brand X. The ISP wants the FCC to require cable companies to sell access to their networks at wholesale in much the same way that EarthLink Inc. and other ISPs are sold access over DSL networks.

The FCC has ruled that cable is an information service, and as such is not regulated by FCC rules. Because of this concept, the FCC has preempted rules that would tax phone service using cable lines, and state laws that require 911 access for people who use VOIP over cable.

Complicating matters is a decision by the 9th U.S. Circuit Court of Appeals, which, in a case involving AT&T and the city of Portland, Ore., said that cable service contains elements of both telecom and information services. At the time, the city was trying to require AT&T to provide open access to third-party ISPs as a part of its franchise negotiations.

The FCC tried a number of end runs around the courts, but eventually the 9th Circuit said that only the Supreme Court or Congress could overrule it. Finally, the FCC was forced to appeal the decision to the Supreme Court.

"The line that's drawn is between telecommunications services that are heavily regulated and information services which aren't," explains Washington communications attorney John Logan. Logan is the former acting chief of the FCC's Cable Services Bureau, and is now in private practice.

Read more