WASHINGTON-The outcome of a case being argued this week before the U.S. Supreme Court will shape the telecom debate going forward.
“This will shape the debate before Congress,” said Mark Cooper, research director of the Consumer Federation of America.
Brand X Services Inc. is an independent Internet services provider that wanted access to a cable system to offer its services to the cable operator’s cable-modem customers. The company was blocked when the Federal Communications Commission declared cable-modem service an information service and thus not required to provide open access.
The debate about what is an information service and what is a telecommunications service has ramifications for everything with requirements about open access-the crux of Brand X, universal service, enhanced 911 and law-enforcement surveillance.
“If you look at universal service, access for disabled consumers and a whole range of other policies, those are Title II policies. The obligations of universal service, collection of funds and disbursement of funds, are attached to telecommunications service,” said Cooper. “If you remove advanced telecommunications services from Title II, as the FCC has done, you eliminate the legal authority to treat it as the source and obligation of the universal-service fund.”
Since information services also cannot be regulated by the states, the topic has drawn the interest of the wireless industry.
“The Wireless industry has section 332 of the Communications Act, so the state can’t regulate entry, but under the information-services doctrine, the states would also not be able to regulate terms and conditions,” said Michael Altschul, CTIA senior vice president and general counsel. “We would like to be totally unregulated like the Internet.”
Telecommunications manufacturers are closely watching Brand X.
“TIA is on the record calling it an information service. It would be a disaster if it went the wrong way,” said Grant Seiffert, vice president of external affairs and global policy of the Telecommunications Industry Association.
The case is also seen as being a key glimpse into the thinking of new FCC Chairman Kevin Martin-if only to hem him in by precedent. While former FCC Chairman Michael Powell was seen as in favor of using the information-services doctrine, Martin has not been so upfront on his views.
The Brand X case is scheduled to be the second case argued Tuesday at the highest court of the land. The first case is Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. That case pits the movie industry against Grokster, a peer-to-peer software provider. MGM charges Grokster software enables people to be able to illegally download movie content. CTIA joined the MGM v. Grokster case on Grokster’s side, arguing technology makers and service providers should not be responsible for their customers’ actions, especially if the service providers are hurt financially from those actions as wireless carriers potentially are when users illegally download ringtones.
“On Tuesday, the future of the Internet will be decided,” said Cooper. “You can stop the flow of information in one of two ways-either from what goes in, the Grokster case, or from what comes out, the Brand X case.”
