The cable industry won a major victory in the Supreme Court Monday when the justices decided 6-3 to uphold FCC rules allowing operators to block rival Internet providers such as Earthlink from offering service over cable broadband networks.
The decision overturns an October 2003 ruling by the federal appeals court in San Francisco that cable Internet service is bound by telephone-style access rules requiring operators to lease access to their network to rival ISPs.
Although Monday's Supreme Court decision provides cable operators the strongest measure of protection from access rules so far, access rules in the future remain a possibility.
The FCC, when it set rules for cable broadband service in 2002, reserved the right to impose access rules if cable companies are found to use their control of their network to restrict consumers' access to Internet content, particularly Web sites that compete with cable TV programming or sites that are affiliated with cable companies.
National Cable & Telecommunications Association President Kyle McSlarrow was was obviously pleased: "Today's Supreme Court's decision is a victory for consumers and maintains the momentum to advance broadband in the U.S. Classifying cable modem service as an interstate information service, as the FCC did, keeps this innovative service on the right deregulatory path."
FCC Chairman Kevin Martin was also happy the court had upheld its decision on the rules: "I am pleased that the U.S. Supreme Court has affirmed the FCC’s ruling. This decision provides much-needed regulatory clarity and a framework for broadband that can be applied to all providers. We can now move forward quickly to finalize regulations that will spur the deployment of broadband services for all Americans."
The other FCC commissioners' reactions were mixed:
Republican Kathleen Abernaty was "gratified" the court paved the way for the commission to craft a "minimal regulatory environment"; Democratic Commissioner Michael Copps saw it differently, saying the decision made it a "steeper climb" toward the goal of "protecting consumers, maintaining universal service and ensuring public safety"; while Democrat Jonathan Adelstein trod a middle ground, saying: "the Supreme Court provided long-awaited guidance on the legal classification of cable broadband modem services," but adding that "the Court's decision should not mean that policymakers turn their backs on American consumers or neglect public safety.A disappointed Media Access Project President Andrew Schwartzman, who has fought for access mandates on cable since 1998, said he would "hope for the best" but predicted cable companies would begin abusing their control over the network. "Sometimes you want to be proven wrong," he said. ""Our predictions will be tested."
At issue was whether the FCC was right to declare cable modem service an unregulated “interstate information service" exempt from open access requirements, or whether it is bound by a lower court ruling that it is a “telecommunications service” subject to telephone-style access regulations that could ultimately require operators let third-party ISPS sell their service over cable wires.
The FCC argued that exempting cable will continue speeding the broadband rollout, which the government has said it has a substantial interest in advancing.