In a case that could decide whether the cable industry will be required to open lines to competitors in high-speed Internet access, the U.S. Supreme Court has begun hearing arguments over whether cable Net is an information service or a separate telecommunications concern.
Internet service providers believe the latter, while the cable industry, perhaps needless to say, believes the former. The Supremes are hearing a case whose last legal turn involved a federal appeals court rejecting a Federal Communications Commission ruling that cable Internet is only an information service. The justices are expected to rule on this case–and the concurrent case of whether peer-to-peer networks are liable for infringing activity committed by their users–in three months.
The FCC is taking the cable industry’s side in the case, while Santa Monica-based ISP Brand X argues that considering high-speed Net a separate telecommunications concern would mean more competition. The cable industry wants the justices to uphold the FCC ruling; the FCC is arguing that considering high-speed Net an information service only would encourage investment and accelerate broadband’s spread.
More than 19 million homes now have cable broadband. Brand X attorney Thomas Goldstein told the justices that letting the cable companies self-regulate would turn opening lines to competition into “a dead letter.”
The justices questioned how cable modem Internet providers could hold broadband access and Net functionality inseparable when the FCC required large telecoms to sell access to their broadband lines. U.S. deputy solicitor general Thomas Hungar told the Court that the FCC has the authority to separate cable from traditional telecom.
Justice Antonin Scalia reportedly compared the cable argument to an automotive parts business requiring buyers to purchase car windshields when they come in to buy windshield wipers, while Justice Stephen Breyer compared cable to voice mail, the latter offering functions similar to e-mail while being tied mostly to highly regulated telecommunications.
Goldstein argued the FCC was wrong to separate information services from telecom services if cable service combines the two. “Congress could not have intended carriers to deregulate themselves simply by adding some [Internet] service,” he argued before the justices.
National Cable and Telecommunications Association attorney Paul Cappuccio argued to the justices that you can’t separate Net functionality from broadband functionality in cable services, which he called “two ingredients (coming) together to make a separate product.”
