Brand X and the Federal Communication Commission's Adoption of the Wireline Broadband Internet Access Order - What Now?
Tierney, Erica C., Santa Clara Computer & High Technology Law Journal
On September 25, 2005, just thirty-nine days after the Supreme Court's decision in National Cable & Telecommunication Ass'n v. Brand X Internet Services, the Federal Communications Commission issued the Wireline Broadband Internet Access Order dropping regulations requiring Bell Operating Companies to offer broadband access on a common carrier basis. Although the FCC believes that the Wireline Broadband Order, designed to help level the playing field between cable modem service providers and DSL providers, will promote marketplace competition, many holes exist which could ultimately harm the availability and accessibility of advanced communication to all Americans. This comment explores both the positive and negative implications of the Wireline Broadband Order including the effect on marketplace competition, the lack of clearly defined enforcement measures, and the viability of the Universal Service Fund.
In today's society the need for high-speed Internet is found everywhere from commerce to the medical profession. (1) Simple narrowband, otherwise known as "dial-up" connections, at speeds of 56kbs, are not enough to support individuals' needs which span anywhere from downloading music to shopping to communicating via the Internet. (2) Rather, many individuals and companies opt for broadband connections providing higher speeds. The two most common types of broadband are cable modem service and digital subscriber line ("DSL"), (3) with the use of technologies such as wireless, satellite, fiber-optic, and powerline emerging rapidly. (4)
Cable modem service transmits data between the Internet and users' computer via the network of television cable lines owned by the cable company. (5) DSL, on the other hand, uses high-speed wires owned by local telephone companies. (6) Cable is known for its ability to support download speeds of "almost always at least 1-1.5 Mbps and sometimes faster depending on how many users are logged on. (7) But like DSL, there are many factors, including general Web traffic that can add to slower speeds, not just the amount of users online." (8) With cable modem service, the number of users in each neighborhood simultaneously accessing the service limits the speed of the signal. (9) DSL connection speeds, made through copper telephone lines, are "comparable with cable speeds (1-2 Mbps usually), however because they are distance sensitive, the farther you live from your service provider's central office, the slower your connection will be." (10)
II. HISTORY OF BROADBAND REGULATION
The Communications Act of 1934 ("1934 Act") created the Federal Communications Commission ("FCC") (11) and ultimately gave the FCC jurisdiction over telegraph and telephone companies. (12) As discussed below, amendments were made to the 1934 act in 1996 to address Internet policy, as the Internet did not exist in 1934.
Following the 1934 Act, in Computer I and Computer II, the FCC distinguished telecommunications and information services based on how the consumer perceived the service being offered. (13) The purpose of this distinction was to restrain the local telephone companies, or incumbent local exchange carriers ("ILECs"), from exerting monopoly power with regard to "enhanced" or "information" services, as opposed to "basic" telecommunications services. (14)
The Computer II rules separated services into basic and enhanced categories, where a "basic service" was defined as "a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information," (15) and an "enhanced service" was defined as a service in which "computer processing applications [were] used to act on the content, code, protocol, and other aspects of the subscriber's information." (16) Basic services, where no processing or storage is needed to convert message, were subject to Title II common-carrier regulations, (17) and were similar to what the Telecommunications Act of 1996 ("Telecommunications Act" or "1996 Act") would later deem "telecommunications services. …