WASHINGTON-Sometime this month, the Supreme Court will determine the future of broadband.
“The next important piece of the broadband puzzle will be revealed when the Supreme Court rules in Brand X,” said Thomas Navin, chief of the FCC’s Wireline Competition Bureau. “How the Supreme Court rules will influence how the Federal Communications Commission encourages the deployment of broadband.”
The Supreme Court in March heard oral argument in the Brand X cases-the National Cable & Telecommunications Association vs. Brand X Internet Services and the FCC vs. Brand X. A decision is expected by the Supreme Court by the end of the month when the court leaves for its summer recess.
Brand X Services Inc. is an independent ISP that wanted access to a cable system to offer its services to the cable operator’s cable-modem customers. The company was blocked when the FCC declared cable-modem service an information service and thus not required to provide open access to other companies.
The debate about what constitutes an information service vs. what makes a telecom service has far-flung ramifications for requirements about open access, universal service, enhanced 911 and law-enforcement surveillance.
The FCC recently reached a consent agreement with Madison River Communications of Merbane, N.C., which included a $15,000 fine and an agreement that the local telephone company would stop blocking Vonage Holdings Corp. Vonage said it has also been blocked by Clearwire. Clearwire is a wireless Internet service venture backed by cellular pioneer Craig McCaw. Vonage said it has come up with a technical fix for the Clearwire blockage.
It is unclear whether the FCC could come to the same conclusion with cable companies or wireless Internet service providers like Clearwire as it did with Madison River, because Madison River is a telecommunications service and both cable and Clearwire are information services. The Supreme Court’s ruling in Brand X is likely to add more clarity.
While the Supreme Court will set the course that policy-makers follow on broadband services, Congress is guaranteed to get involved, said Amy Levine, legislative counsel to Rep. Rick Boucher (D-Va.).
“Regardless of how Brand X comes out, I think there will be someone or several someones asking us to do something,” said Levine.
A key FCC staffer said it would be ideal if Congress got rid of the information services and telecommunications services classifications altogether.
“These definitions are rigid. A lot of communications services have attributes of both information services and telecommunications,” said Matthew Brill, senior legal adviser to FCC Commissioner Kathleen Abernathy. “Ideally Congress will take care of this and give the FCC targeted authority to regulate broadband for social obligations.”
Navin, Levine and Brill were some of the many panelists last week at a two-day conference, “The Broadband Policy Summit: A Leadership Blueprint” sponsored by the Federal Communications Bar Association.
While various panelists tried to interject wireless broadband into the discussion, the main debate was between wireline-mostly regional Bell operating companies-and cable companies that are each trying to enter the others’ core business.
“Right now we (wireless broadband) are a really, really small piece of the pie with 1.6 million customers at the end of 2004,” said Carolyn Brandon, CTIA vice president of policy. “Despite the slide that showed we (the wireless industry) are a very small piece of the pie, we are poised for growth.”
Joel Taubenblatt, chief of the broadband division of the FCC’s Wireless Telecommunications Bureau, also highlighted various FCC actions to encourage wireless broadband deployment.
