FCC Issues Notice of Inquiry Regarding Open Access

(September 28, 2000) The FCC issued a Notice of Inquiry regarding what regulatory treatment it ought to give to broadband Internet access services over cable, copper and other facilities. The FCC seeks public comment.

The Federal Communications Commission's Notice of Inquiry (NOI) states that "The convergence of technologies that allows the provision of high-speed services over traditional cable television facilities, telecommunications lines, and other facilities raises several fundamental questions concerning the Commission’s traditional approaches to such technologies. In this proceeding, the Commission will explore issues surrounding high-speed access to the Internet provided to subscribers over cable infrastructure, so-called "cable modem services." Specifically, we seek to determine what regulatory treatment, if any, should be accorded to cable modem service and the cable modem platform used in providing this service. We also seek comment on the impact of our approach on other providers of high-speed services."

The NOI also states that "The Commission has heretofore taken a "hands-off" policy with respect to the high-speed services provided by cable operators. This regulatory restraint has been premised, in part, on the belief that "multiple methods of increasing bandwidth are or soon will be made available to a broad range of customers." Nonetheless, this Commission has stated that it would revisit this policy "if competition fails to grow as expected" in the provision of high-speed services."

For example the FCC declined to impose any "open access" conditions upon AT&T when it approved the license transfers associated with the merger of AT&T and Media One.

FCC  Chairman William Kennard

The legal status of broadband Internet access over cable is unsettled. Local cable franchising authorities have argued that it is a cable service within the meaning of the Communications Act, and that local authorities have authority to impose "open access" conditions upon cable operators. The U.S. Court of Appeals (9th Circuit) issued its opinion in AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000) on June 22, holding that broadband Internet access over cable is a telecommunications service, and therefore beyond the regulatory authority of local cable franchising authorities.

However, there is also Gulf Power Co. v. FCC, 208 F.3d 1263 (11th Cir. 2000) which held that Internet service is neither a cable service nor a telecommunications service. There is also the case MediaOne  v. County of Henrico, which is on appeal to the U.S. Court of Appeals (4th Circuit). The District Court concluded that it is a cable service, but that the Communications Act preempts local franchising authorities from imposing open access conditions. (97 F.Supp.2d 712, 714 (E.D. Va. 2000).

The FCC filed a cryptic amicus curiae brief in the Portland case, which did not take a position on the legal status of broadband Internet access over cable facilities.

• the services provided by cable operators and other high-speed platforms and the type of access sought by unaffiliated ISPs.
• the potential approaches for classifying cable modem service and the cable modem platform and the implications of classifying cable modem service or the cable modem platform under each category.
• multiple ISP access, including definitional issues and how market-based and regulatory approaches potentially affect the availability of high-speed services.
• whether the Commission should pursue any further course of action such as exercising its rulemaking or forbearance authority ("we ask whether there is a need for the Commission to initiate a rulemaking to consider adopting rules, policies, and regulations governing cable modem service or access to the cable modem platform").

The public has 45 days from the date of publication of the NOI in the Federal Register to filed comments. Reply comments must be filed within 75 days of publication.

NCTA President Robert Sachs had this to say: "We welcome the FCC’s inquiry into regulatory questions about third-party access to broadband networks. The Portland decision ended the role of local regulation of Internet services and affirmed that a national policy should apply. Today’s inquiry follows up on that holding.
Significantly, today’s decision emphasizes that access questions are best handled nationally, involving all players and all industries, and should not be pursued within the context of an individual franchise transfer or a particular merger review."