The status of broadband

1. The status of broadband • FCC defines • High-speed lines that deliver services at speeds in excess of 200 kbps in at least one direction • Advanced services lines • Deliver services at speeds exceeding 200 kbps in both directions

2. Questions about broadband • What do we do about broadband services? • Why didn’t the ILECs deploy DSL faster? • Could regulation be to blame? • How do we get carriers to deploy more advanced technologies (whatever they are)? • Does the current regulatory scheme make any sense? • Broadband seems different from narrowband, so do the old narrowband regulatory paradigms work?

3. Access to the Internet • Most common methods • Dial-up over regular telephone line • xDSL line • Cable Modem

4. Dial up Can be ILEC or DLEC facilities ISP Telephone Office (regular local switching) Subscriber (using a modem)

5. xDSL Can be ILEC or DLEC facilities Can be ILEC or DLEC ISP DSLAM Subscriber (need DSL modem) switch

6. Using Cable Modem ISP Cable Headend Transmitter Cable Modem Termination System Subscriber (using cable modem)

7. What are the regulatory issues? • There seem to be two types of services here • Internet access • Dial-up, xDSL, cable modem • Internet services • Email, web surfing, etc. • It is clear that Internet services are not regulated • Information services • What about Internet access services? • Are they separable from Internet services? Does it matter if the same entity provides both?

8. FCC’s Declaratory Ruling, March, 2002 (FCC 02-77) • Principles followed: • Encourage the ubiquitous availability of broadband to all Americans • Broadband services should exist in a minimal regulatory environment that promotes investment and innovation • Seek a national framework for the regulation of competing services that are provided via different technologies and network architectures

9. Cable Modem Service • Regards Cable Modem Service as one unified service, whose functions include • Internet connectivity • Enhanced applications • Operations • Customer service • Cable operators self-provide some or all of these functions or contract with affiliated or unaffiliated ISPs for some or all of them

10. FCC Decision • Cable modem service • Properly classified as an interstate information service (applies end-to-end analysis) • Is not a cable service • There is no separate offering of telecommunications service

11. Basis for Decision • Turns to statutory language of TA96 • Telecommunications service: “the offering of telecommunications for a fee directly to the public or to such class of users as to be effectively available to the public” • Telecommunications: “the transmission, between or among points specified by the user, or information of the user’s choosing, without change in the form or content of the information as sent and received.” • Information service: “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information via telecommunications, . . . does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.”

12. Not cable service • Definition of cable service: • One-way transmission of video programming or other programming service; and subscriber interaction required for the selection or use of such video programming or other programming service (other programming service means information that a cable operator makes available to all subscriber generally) • Finds that cable modem service does not fit this definition

13. Further explanation of decision • Cable operators provide subscribers with a single service, not with separate transmission, e-mail, and web surfing services—telecommunications is just a necessary element in that service • Applies for both “self-provision” and “input” models • AOL Time Warner situation is private carriage (decides which ISPs to deal with)

14. City of Portland Decision • Ninth Circuit found that local franchising authority could not require multiple ISP access because cable modem service not a cable service • Ninth Circuit found that @Home was providing a telecommunications service • Ninth Circuit decision based on a record “that was less than comprehensive” according to the FCC

15. NCTA vs. Brand X • Supreme Court decision in June 2005 • Cable modem service is an information service • Upheld the FCC’s Declaratory Ruling of March 2002

16. So What About Wireline Broadband? • FCC Order, September 2005 • Facilities based wireline broadband Internet access is an information service • Facilities based wireline broadband Internet providers no longer required to separate out and offer transmission as a standalone service subject to Title II of the Communication Act • BOCs relieved of Computer Inquiry requirements with respect to wireline broadband Internet access services

17. Facilities based wireline carriers can offer Internet access transmission arrangements on common carrier or non-common carrier basis • Facilities based wireline Internet access service providers had to continue to provide existing wireline broadband access transmission offerings to unaffiliated ISP’s for a one year transition period • Provider may choose to offer broadband transmission as a telecomm service to an ISP but does not have to. • Transmission component as part of a facilities-based provider’s offering of broadband Internet access to end users using own transmission facilities is not a telecommunication service under the Telecom Act

18. What does this all mean? • Both cable modem and DSL are information services • Interstate in jurisdiction • FCC has decided to forebear from regulation • But then there’s the interesting case of VoIP . . . . .