National Cable & Telecommunications Association v. Brand X Internet Services

National Cable & Telecommunications Association v. Brand X Internet Services
Supreme Court of the United States
Argued March 29, 2005 Decided June 27, 2005
Full case name	National Cable & Telecommunications Association et al. v. Brand X Internet Services et al.
Docket nos.	04-277
Citations	545 U.S. 967; 125 S. Ct. 2688; 162 L. Ed. 2d 820; 2005 U.S. LEXIS 5018; 18 Fla. L. Weekly Fed. S 482
Prior history	FCC order affirmed in part, vacated in part, remanded, Brand X Internet Servs. v. FCC, 345 F.3d 1120 (9th Cir. 2003); rehearing, rehearing en banc denied, 2004 U.S. App. LEXIS 8023 (9th Cir. Mar. 31, 2004); cert. granted, sub nom. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 543 U.S. 1018 (2004)
Subsequent history	On remand, sub nom. Brand X Internet Servs. v. FCC, 2006 U.S. App. LEXIS 1573 (9th Cir., Jan. 23, 2006)
Holding
The Court held that a cable service is an information service. Ninth Circuit Court of Appeals reversed and remanded.
Court membership
Chief Justice William Rehnquist Associate Justices John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy David Souter · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer
Case opinions
Majority	Thomas, joined by Rehnquist, Stevens, O'Connor, Kennedy, Breyer
Concurrence	Stevens
Concurrence	Breyer
Dissent	Scalia, joined by Souter, Ginsburg (only as to part I)
Laws applied
Telecommunications Act of 1996

National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005), is a case in which the United States Supreme Court declared 6-3 that a cable Internet provider is an "information service," and not a "telecommunications service" and as such competing internet service providers, like Brand X, were denied access to the cable and phone wires to provide home users with competing internet service.

Background

In 1996, Congress passed the Telecommunications Act of 1996, which regulated telecommunications services. Providers of telecommunication services were subject to taxes and forced to sell access to their networks to the public.^[1]

The Telecommunications Act also defined information services as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing."^[2] These information services are not subject to the same taxes and regulations as telecommunications services.

Small Internet service providers in the era of dial-up service had equal access to home users because the first services were provided over Plain old telephone services (POTS) which were regulated as common carriers. Cable television operators then started to use the coaxial cables to provide high speed access. Small ISPs like Brand X wanted to use the coaxial cables, owned by private cable companies but using public rights of way, in a manner like common carriers. The Federal Communications Commission (FCC) refused, and Brand X subsequently sued. The FCC won in the three judge panel in the Ninth Circuit but then lost en banc.

This case was important in the battle over network neutrality in the United States.

Arguments

Brand X

The Brand X Internet Service Provider argued that cable companies should be classified as a telecommunications service because they are conduit for simple data communication, and should therefore be required to allow their rivals to use the telecommunication component of their service. This would allow rivals like AOL and Earthlink to offer faster internet connections to their subscribers.^[1]

National Cable and Telecommunications Association

The National Cable & Telecommunications Association (NCTA) argued that, because they offered more than just telecommunication services, but other information services as well, they should be classified as an information service, and therefore not fall under the regulations imposed upon telecommunication services.

Opinion of the Court

The court ruled 6-to-3 that the law regarding the distinction between telecommunication services and information services was vague, and that the FCC has the authority to make the decision.^[3] The decision of the Court of Appeals was reversed.

Ultimately, the FCC decided that cable companies were information services and did not have to allow their competitors access to their faster connections.^[4]

See also

• List of United States Supreme Court cases, volume 545
• List of United States Supreme Court cases

References

1. ^ ^{a b} Hansell, S. (June 28, 2005). Cable Wins Internet-Access Ruling. Retrieved May 29, 2008
2. ^ [Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C. §§ 151-170)]
3. ^ Supreme Court of the United States. National Cable & Telecommunications Association v. Brand X Internet Services et al. No. 04-277.
4. ^ Wigfield, M. (August 5, 2005). FCC Eliminates Mandated Sharing Requirement on Incumbents Wireline Broadband Internet Access Services. Retrieved May 29, 2008

External links

• Text of National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) is available from:  · Findlaw · Cornell LII

• NY Times--Cable Wins Internet-Access Ruling
• Cybertelecom:: Internet over DSL
• Slashdot.org discussion of the decision
• Article discussing the decision as applied to the Board of Immigration Appeals