The U.S. Court of Appeals for the Third Circuit has rejected challenges brought by cable television operators and internet service providers to the Federal Communications Commission’s (FCC) 2005 decision to classify broadband internet access service provided over wireline facilities (i.e.,traditional telephone lines) as an unregulated “information service” (Time Warner Telecom v. FCC). This decision follows a steady progression by the FCC of classifying broadband internet access services, regardless of underlying technology, as information services, and of promoting facilities-based competition in lieu of mandatory open-access requirements.
In NCTA v. Brand X Internet Services, the Supreme Court of the United States upheld the FCC’s earlier decision to classify cable modem service as an unregulated “information service,” which does not include a separate “telecommunications” component that should be subject to mandatory common carrier regulation. In Time Warner Telecom, the Third Circuit concluded that the FCC had adequate evidence in the record to find that wireline broadband service and cable modem service are functionally similar from the end-user’s perspective and that they are entitled to the same regulatory classification. The court also rejected arguments that the FCC had changed its position on wireline broadband services, had failed to conduct a traditional market analysis of the telephone carriers’ market power and had failed to consider the public interest benefit of mandating that wireline broadband services be provided on a common carrier basis.