Last week, the U.S. Supreme Court handed down a ruling, in the case of the National Cable and Telecommunications Association vs. Brand X, that we believe will affirm how Internet services will be provided and who will be required (or not required) to provide them.
Brand X had petitioned the court to force cable operators into allowing the Brand X Internet service to be offered over their cable TV infrastructure.
In 2002, the FCC ruled that cable services were an "information service" and not a "telecommunications service." As information service providers, cable operators were not required, then, to share their cable plant with other service providers - unlike telecommunications services providers who are (at least for now) required to share their infrastructure. Telecommunications service providers qualify as "common carriers," and as such are required by regulation to provide equal access of their facilities to other carriers. Currently, DSL is categorized as a "telecommunications service" and so is subject to universal access.
In its ruling, the court clarified once and for all that cable services can be classified as information services and are not subject to provide the non-discriminatory service access of a common carrier. The court was also supportive of the FCC's ability to differentiate between an information service and a telecommunications service. Therefore, we will expect that the FCC may take a look at DSL infrastructure in this context as an information service. As an information service, DSL services may likewise become exempt from the need to offer universal access. In fact, the incoming FCC chairman believes that DSL and cable operator access should both be treated equally, so we expect that the FCC is already busy looking at how to reclassify DSL.
The million-dollar question (or at least a million dollars in future legal fees) remains over how to treat VoIP. Is VoIP a telecommunications service or an information service? While cable companies can lawfully prevent Internet service providers from gaining access to their cable plant, does the same hold true if a VoIP service provider wants cable plant (or, in the future, DSL) access? If VoIP is an information service (as some VoIP providers contend) does that mean those VoIP services can be denied access to broadband access?
No doubt, some entrepreneurial lawyer will read our newsletter and in three or four years we'll be able to update you on the Supreme Court's view about VoIP and universal broadband access.