That other case
Amidst all the Grokster hullabaloo, another important tech-related decision came down on Monday in the Brand X case. The Court held in an opinion by Justice Thomas that cable companies offering internet access can cling to their distinction as providers of “information services”, and therefore aren’t subject to the common-carrier requirements that the Baby Bells are as providers of “telecommunications services”. Basically it means that while Verizon has to let Earthlink sell you DSL internet access over their lines, Time Warner is under no such obligation. Now one can debate the merits of a common-carrier requirement; I like it but I don’t love it. Regardless of where you stand, though, you have to see this decision as crap, at least from a policy perspective. It perpetuates a fictional difference for a distinction that really has none. One of the great things about the IP protocol is that it doesn’t matter how the bits get to your door, and for the government to apply different regulation based on what kind of wire they travel over is just plain silly.
As for the validity of common-carrier requirements, I think in the short run they are good for driving prices down. However, if anything is clear from the last ten years, it is that a home data connection will soon become the new essential utility, joining the hallowed ranks of water and electricity, and therefore it should be provided as widely as possible in a standardized form. It only make sense to have one data pipe coming in to each house, and that most likely will be provided by a local monopoly, be it public or private. In this market, just like other utilities, competition is far less important than connectivity.
On a related note, Foreign Affairs has a great piece on where the U.S. stands in terms of broadband penetration. The news isn’t good.
evan :: Jun.29.2005 :: Notions :: 8 Comments »
Eveybody take note, because this may be the one and only time I agree with Justice Thomas. That is to say, the Court applied the law properly according to my understanding of the statute and the requirements of Chevron. The fault lies with the FCC in choosing the wrong corporate lobby to cave in to, and to the Clinton Administration for giving us the damned 1996 Telecoms Act. It is a crappy piece of legislation, but one which the Court is constrained to honor.
Marc is probably right, it’s the not the decision I should be mad at. Really it just afforded me an opportunity to complain about the results of the Telecommunications Act. I suppose I was hoping that the Court would find a logical path to overturning the relevent parts of the statute, so that we don’t end up with a result that is so offensive to reason. I’m sure I’ll have to get comfortable with such results once I’m in school, but for now I’m going to remain a righteously indignant 0L and find some more ways that the world would be a better place if only people would let me make the laws.
The Telecoms Act has done more to deprive Americans of important and relevant media content since the HUAC. But one of the few things this Court has done consistently for the decade-or-so they’ve been together is to only second guess agency action when the law allows them to. Sometimes it’s too bad(like everytime the FCC is involved), but sometimes it’s REALLY good (like almost everytime the EPA is involved). And this goes both ways; they tend to find for bad policies regardless of whether they are upholding or striking down FCC actions, and vice-versa for the EPA. It’s bizarre. Oh well. Time to start learning Chinese.
On another note….If you were king of the world, you’d have a coup on your hands - world’s mine.
I wouldn’t have it any other way, my friend. I’m letting you do the hard work, build the infrastructure. Then all that’s left for me is to change the name on all the signs.
Dude, I’m not in it for the glory. I’m in it for the chicks.
Once I lead the revolution against you two, all utility lines — fiber, cable, and other — will be publicly owned and leased by private companies who compete for customers on a level playing field. That would be the most sensible alternative.
Fortunately, the world is going wireless. In a few years, this supremely stupid, inconsistent, and harmful FCC decision will cease to be relevant. Don’t forget that the ISP utilities, at least the cable-based ones, for the most part own only the lines that deliver content from the NAP to the user. Major data pipes (e.g. between cities) are still owned by the big telecoms, universities, or the government. So, delivering content to users wirelessly from the major network access points will require a bit of infrastructure, but the cost of entry into the wireless market is much lower (microwave and radio towers are cheaper to build and maintain than traditional cable), and good legislation and regulation in the future can ensure better competition in this emerging market.
Don’t forget that the FCC also regulates the airwaves.
Yes, but there’s an important difference between opening up certain frequencies for a given technology and restricting those frequencies to a certain provider. At present, what we see in the wireless world are private, point-to-point connections, usually between a wi-fi router administered by an end user (the ISP’s customer) and the devices on her network. Some ISP’s are now providing point-to-point wireless internet via directonal microwave or radio broadcast, but again, these are between the company and the end user, not a general broadcast like a TV or radio station. If we were to see the emergence of wide-area wi-fi networks administered by companies over, say, an entire city, the FCC might have to step in and allocate frequencies to companies to avoid interference, but that doesn’t seem to be the direction in which we’re headed. In any case, it has the potential to be a problem in crowded office buildings now, but it isn’t.
Probably the best analogy is mobile phones. The FCC has allocated a certain set of frequencies for use by mobile phones. Cell towers are cheaper to build and maintain than traditional phone lines. As a result, most wireless consumers have a choice between Cingular, T-Mobile, Sprint, Verizon, and, often, a local provider, telecoms consolidation notwithstanding. That’s cerainly a lot better competition than we get with local cable service, and consumers have benefited as a result. At the same time, the FCC has AFAIK kept their nose out of the industry, except to allocate frequencies to new technologies (e.g. GSM) as they become available. Please correct me if I am mistaken about this, but their approach seems to me like the right one (even if the U.S. mobile-phone world is still several years behind the rest of the world).