Will cable be forced to compete?

An article from the Washington Post discusses some of the possible implications of a opinion by the US Court of Appeals for the Ninth Circuit which vacates an FCC ruling that cable modem internet services are an "information service" as opposed to a "telecommunications service" and thus are not subject to open competition requirements.

This ruling, should it stand, may lead the way to requiring all local cable companies to provide competitive access to local cable infrastructure in the same basic way that local telecommunications providers (such as Verizon) are required to provide competitive access to both phone companies and internet service providers (for DSL in the case of the latter).

At issue is the 1996 Communications Act that requires that the FCC do what is necessary to make certain that there is deregulated competition among providers of "last mile" telecommunications services, in order to fully open the markets for local, long distance, and other communication services. Under this law and the subsequent FCC rulings, internet access has been classified as either being a "telecommunications service", which is required to have open access; or an "information service", which is not required to have open access. In past rulings by the FCC, DSL (and related telephone technologies) have been classified as a "telecommunications service", whereas cable modems have been classified as an "information service".

In this case, a number of ISPs (and Verizon, acting as a DSL provider) have requested that the way that this classification is done be changed. In all cases, the move was hoped to bring consistency to the way that both broadband technologies are regulated. In the case of the ISPs, they wanted to see cable considered the same way that telephone lines are so that the competitive landscape would be opened up in more cable markets (a few markets already have some competition based on consent decrees and merger requirements). In the case of Verizon, the hope was that the court would find that DSL, like cable, was just an "information service", thus removing the obligation for Verizon and other local telephone providers to leave their networks open.

Thankfully, the court has decided to bring consistency to the market in a reasonable way and has told the FCC that it needs to consider cable and DSL internet services to contain both telecommunications and information components. Basically, this means that the movement of data across the cables is telecommunications and must be opened up, but the access to mail servers, web servers, caching mechanisms, etc. are all information services and are immune to this form of regulation.

Sounds like a reasonable idea to me. Hopefully it will stick.