BLOCKING ACCESS TO THE INFORMATION
SUPERHIGHWAY: REGULATING THE INTERNET OUT OF
THE REACH OF LOW-INCOME AMERICANS
Edward J. Sholinsky*
Does a pizzeria not offer delivery just because it will bring the finished
product to a customer’s door? Does pizza become something else when
combined with delivery? Does the pizza and delivery become a new,
The Supreme Court in 2005 upheld the Federal Communications
Commission’s (“FCC”) decision that the high-speed transmission and
applications of cable Internet are one product instead of two products offered
together. In doing so, the Court protected cable companies from common
carrier regulations for their Internet services, which decreases competition in
the broadband market and the likelihood of affordable high-speed Internet.
This is unfortunate. The Internet is a vital tool in education and business,
and an important forum for social interaction. Those who do not have access
to broadband Internet risk being left behind. Congress and the FCC have
recognized the important role broadband Internet plays in the United States,
declaring that every American should have broadband access to it.
Municipalities, led by Philadelphia, have stepped in to provide that access,
offering no- and low-cost broadband Internet to their residents. Because the
FCC has been making it harder to bring affordable access to more people,
this is an ideal temporary measure to increase competition in the broadband
* J.D. Candidate, Rutgers University School of Law – Camden, May 2007; B.A.,
University of Michigan, 1999. I would like to thank my wife, Regina, for her love and
patience, and Dean Camille Spinello Andrews for her insights and suggestions, which helped
shape this Note.
322 RUTGERS LAW JOURNAL [Vol. 38:321
market and to provide broadband to those who cannot afford cable or Digital
Subscriber Line (“DSL”) Internet from incumbent providers.
Part II of this Note addresses the important role the Internet plays and the
digital divide. Part III examines broadband technology and the regulatory
framework the FCC and the courts have shaped for broadband Internet. Part
IV deals with the repercussions of cable Internet’s regulatory framework.
Finally, Part V concludes that because the regulatory framework for cable
Internet is unlikely to change, municipalities should be able to enter the
market and provide no- and low-cost Internet to stem the digital divide.
II. INTERNET BACKGROUND
The Internet is a vital part of how Americans live, communicate, and
conduct business.1 No longer is the Internet a specialized domain; it has
become a major aspect of most parts of American life.2 Further
revolutionizing the Internet is the availability of high-speed broadband
technology—typically through a cable or DSL modem—which has expanded
the capabilities of the Internet.3
1. See, e.g., FCC, FCC 05-151, POLICY STATEMENT 1 (2005) [hereinafter FCC POLICY
STATEMENT], available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-
151A1.pdf (“The availability of the Internet has had a profound impact on American life.”);
NAT’L TELECOMMS. & INFO. ADMIN., U.S. DEP’T OF COMMERCE, FALLING THROUGH THE NET:
DEFINING THE DIGITAL DIVIDE, at xv (1999) [hereinafter FALLING THROUGH THE NET],
http://www.ntia.doc.gov/ntiahome/fttn99/FTTN.pdf (“[T]he Internet [is] increasingly critical
to economic success and personal advancement.”); Kathleen B. Cooper & Michael D.
Gallagher, Foreword to NAT’L TELECOMMS. & INFO. ADMIN., U.S. DEP’T OF COMMERCE, A
NATION ONLINE: ENTERING THE BROADBAND AGE (2004) [hereinafter A NATION ONLINE],
http://www.ntia.doc.gov/reports/anol/NationOnlineBroadband04.pdf (quoting President
Bush’s comments that broadband technology should be available to all Americans because of
its vital role in the economy and in people’s quality of life).
2. See Brett M. Frischmann, An Economic Theory of Infrastructure and Commons
Management, 89 MINN. L. REV. 917, 1016 (2005) (“The Internet environment is quickly
permeating all aspects of the lives, affairs, and relationships of individuals, companies,
universities, organizations, and governments worldwide. It is having significant effects on
fundamental social processes and resource systems that generate value for society.”).
3. See Cooper & Gallagher, Foreword to A NATION ONLINE, supra note 1 (“[M]ore
than ever before, high-speed connections promise to enhance our Nation’s productivity and
economic competitiveness, improve education, and expand health care for all Americans.”);
FCC, Broadband, http://www.fcc.gov/cgb/broadband.html (last visited Feb. 20, 2007) (noting
that broadband makes voice, video, and Internet services available through one wire).
2006] BLOCKING ACCESS TO THE INTERNET 323
Connecting to the Internet via broadband, however, is cost prohibitive
for many.4 This results in a digital divide between those who can take full
advantage of the resources the Internet affords and those who cannot.5 If the
digital divide grows, many of the less privileged will continue to fall behind
economically, educationally, and socially.6
A. The Role of the Internet
The Internet touches nearly every part of life in America, from business
to the military to medicine.7 The Internet’s importance stretches beyond
economics or national security, touching on basic freedoms and social
growth.8 Internet users benefit not just themselves, but also those they touch
4. See A NATION ONLINE, supra note 1, at 13-15 (finding that about 39% of non-users
cited price as the reason for not having broadband); Enrico C. Soriano et al., A Look at Key
Issues Currently Shaping Broadband Deployment and Regulation, COMPUTER & INTERNET
LAW., July 2004, at 1, 3 (concluding that the low subscription rates to cable- and DSL-based
high-speed Internet service is, in part, due to the high cost and the lack of “must-have”
5. A NATION ONLINE, supra note 1, at A-1 (finding that 7.5% of families making less
than $15,000 have broadband Internet versus 31.2% that use the Internet; 9.3% of families
making between $15,000 and $24,999 have broadband versus 38% who use the Internet;
45.4% of families making more than $75,000 use broadband in the home versus 82.9% who
have access to the Internet); FALLING THROUGH THE NET, supra note 1, at xv (finding that the
divide between rich and poor access to technology is growing).
6. See FALLING THROUGH THE NET, supra note 1, at 77 (noting that access to
technology like the Internet is “necessary for survival” in the modern economy); Frischmann,
supra note 2, at 920 (describing the Internet as a “fundamental public and social
infrastructure” that empowers users). The nonprofit Educational Testing Service, which
“designs and administers the SAT”, plans on unveiling an updated version of the Information
and Communication Technology exam, which measures “technology literacy.” Justin Pope,
Associated Press, New Exam Aims to Measure Tech “Literacy”, USATODAY.COM, Feb. 2,
2006, http://www.usatoday.com/tech/ news/2006-02-02-tech-literacy-exam_x.htm. Tasks on
the exam include work with databases, e-mail communications, and information seeking on
the Internet, followed by determining the information’s reliability. Id. The exam is aimed at
high school and college students, and both Texas and West Virginia are “monitoring early
results to see if the test would be useful.” Id.
7. Charles H. Ferguson, The United States Broadband Problem: Analysis and Policy
Recommendations (May 31, 2002) (unpublished paper, on file with The Brookings
Institution), available at http://www.brookings.edu/views/papers/ferguson/working_paper
8. See Brief Amicus Curiae of the American Civil Liberties Union and the Brennan
Center for Justice at NYU School of Law in Support of Respondents at 17, Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Nos. 04-277, 04-281)
[hereinafter Brief Amicus Curiae of the ACLU] (The Internet “is irreplaceable as a facilitator
of free expression”); J. Israel Balderas, Speaking with One Broadband Voice: The Case for a
324 RUTGERS LAW JOURNAL [Vol. 38:321
with their ideas, both commercially and otherwise.9 Recognizing the
importance of the Internet and broadband, the FCC adopted a policy that all
Americans should have affordable access to broadband.10
Moreover, failures to deploy broadband Internet can have a detrimental
effect on the country.11 The U.S. Department of Commerce estimates that
$20.8 billion in e-commerce was done in the third quarter alone in 2005.12
That figure represented an increase of nearly 27% over the same period in
2004.13 The Internet’s prominence in commerce transcends buying and
selling; it now permeates the major aspects of business.14 In going beyond
retail, the Internet has become a stream of commerce in itself.15
Unified Circuit Appeals Process After Brand X Internet Services v. FCC, 13 COMMLAW
CONSPECTUS 377, 377 (2005) (“The high capacity infrastructures that provide broadband
access are to the 21st century what roads, canals, and railroads were to the 1800s and what
basic telecommunications services like the telephone and television were to the last century.”);
Frischmann, supra note 2, at 1016 (“It is very difficult to estimate the full social value of the
Internet, in large part because of the wide variety of downstream uses that generate public and
nonmarket goods.”); Wireless Philadelphia Executive Committee, http://www.phila.gov/
wireless/briefing.html (last visited Feb. 24, 2007) (declaring that the Internet is to the twenty-
first century what the railroad was to the nineteenth and the car was to the twentieth century).
9. See Frischmann, supra note 2, at 1017-19 (commenting that people who interact
online benefit those they touch with their ideas and create dynamic relationships that are
economic, political, and social).
10. FCC Strategic Goals: Broadband, http://www.fcc.gov/broadband (last visited Feb.
24, 2007). The FCC’s broadband policy is discussed at greater length, infra Part III.B.
11. See Ferguson, supra note 7 (“Failure to improve broadband performance could
reduce U.S. productivity growth by 1% per year or more . . . .”).
12. Michael D. Gallagher, Assistant Sec’y for Commc’ns & Info., Nat’l Telecomms. &
Info. Admin., Wireless: Driving U.S. Innovation and Economic Growth, Address at the WCA
International Symposium and Business Expo (Jan. 18, 2006) [hereinafter Gallagher Address],
available at http://www.ntia.doc.gov/ntiahome/speeches/2006/MGallagher_WCA_011806
13. U.S. CENSUS BUREAU, QUARTERLY RETAIL E-COMMERCE SALES: 3RD QUARTER 2005
(2005), http://www.census.gov/mrts/www/data/pdf/05Q3.pdf. Similarly, between the third
quarters in 2004 and 2003, retail e-commerce had increased by about 22%. Id. The Census
Bureau estimated that online sales made up 2.3% of all retail sales for the third quarter of
14. See 47 U.S.C. § 230(b)(2) (2000) (“It is the policy of the United States . . . to
preserve the vibrant and competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State regulation.”); Nat’l Inst. of
Standards & Tech., NIST’s Role in Electronic Commerce (July 10, 2000), http://www.
nist.gov/public_affairs/factsheet/ecommerce.htm (“Electronic commerce is much more than
simply the buying and selling of goods and services over the Internet. Market competition is
driving the demand for intensive sharing of complex technical information across business
enterprises and with their suppliers, and industry has begun to use the Internet to satisfy this
need.”). The increased reliance on broadband “could stimulate economic growth by reducing
2006] BLOCKING ACCESS TO THE INTERNET 325
Beyond dollars and cents, the Internet has also transformed education
and communications.16 Broadband has become a technology that students
consider “an essential and preferred component of every aspect of their
lives.”17 The Internet promotes the expression and sharing of ideas in an
unprecedented manner.18 Such activity “is a pure public good generally
costs and improving productivity.” Robert W. Crandall et al., Universal Broadband Access:
Implementing President Bush’s Vision, 813 PLI/PAT 517, 525 (2004). This could result in
business savings between $125 and $250 billion per year. Id.
15. See Frischmann, supra note 2, at 958 (“Whether we are talking about transportation
systems . . . or Internet infrastructure, the bulk of the social benefits generated by these
resources derives from their downstream uses. They create value downstream by serving a
wide variety of end-users who rely on access to them.”). Noting that “social demand for the
infrastructure itself is extremely difficult to measure,” Frischmann writes:
A road system . . . is not socially beneficial simply because we can drive on it. I may
realize direct consumptive benefits when I go cruising with the windows down and
my favorite music playing, but the bulk of social benefits attributable to a road system
comes from the activities it facilitates at the ends, including, for example, commerce,
labor, communications, and recreation.
Id. (footnote omitted); see also Mark Cooper, Open Access to the Broadband Internet:
Technical and Economic Discrimination in Closed, Proprietary Networks, 71 U. COLO. L.
REV. 1011, 1013 (2000) (“Networks are the essence of the e-world and the [I]nternet century
into which we are embarking. Global scale, fluid movement of information, and commerce
have created a new economy, a new mode of production.”).
16. See 47 U.S.C. § 230(a)(1) (“The rapidly developing array of Internet and other
interactive computer services available to individual Americans represent an extraordinary
advance in the availability of educational and informational resources to our citizens.”);
United States v. Am. Library Ass’n, 539 U.S. 194, 207 (2003) (“As Congress recognized,
‘[t]he Internet is simply another method for making information available in a school or
library.’ It is ‘no more than a technological extension of the book stack.’” (quoting S. REP. NO.
106-141, at 7 (1999))); id. at 227 (Stevens, J., dissenting) (calling the Internet “an important
medium of expression”); Cooper, supra note 15, at 1014 (“Concerns about freedom of
expression should augment concerns about economic power.”).
17. FCC, FCC 04-208, AVAILABILITY OF ADVANCED TELECOMMUNICATIONS CAPABILITY
IN THE UNITED STATES: FOURTH REPORT TO CONGRESS 33 (2004) [hereinafter FCC FOURTH
REPORT], available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-208A1.pdf.
18. See 47 U.S.C. § 230(a)(3) (“The Internet . . . offer[s] a forum for a true diversity of
political discourse, unique opportunities for cultural development, and myriad avenues for
intellectual activity.”); Ashcroft v. ACLU, 535 U.S. 564, 587 (2002) (O’Connor, J.,
concurring in part and concurring in judgment) (arguing that anything less than a national
standard for obscenity on the Internet would limit a speaker’s freedom of expression); id. at
595 (Kennedy, J., concurring in judgment) (“[W]hen Congress purports to abridge the
freedom of a new medium, we must be particularly attentive to its distinct attributes, for
differences in the characteristics of new media justify differences in the First Amendment
standards applied to them.” (internal quotation marks and citation omitted)); Brief Amicus
Curiae of the ACLU, supra note 8, at 17 (calling the Internet “irreplaceable” for free speech);
326 RUTGERS LAW JOURNAL [Vol. 38:321
available for both consumption and productive use by recipients.”19
Widespread availability of this good, then, is economically and socially
vital.20 Thus, those without access will suffer economically and socially,
causing them to fall behind those who do have access.21
B. The Digital Divide
The digital divide is the gap “between those with access to new
technologies and those without[, and] is now one of America’s leading
economic and civil rights issues.”22 Those caught in the digital divide lack
the economic, educational, and social benefits enjoyed by those who have
access to technology.23 As broadband emerges as a necessary component for
full enjoyment of the Internet, the digital divide will widen.24 While the FCC
argues that the gap is closing between households that make roughly $22,000
or less and those that make more than $53,000, the same report showed that
only 16% of low-income households have access to the Internet.25 More than
75% of households with incomes above $50,000 have access.26
The digital divide has the greatest effect on minorities, low-income
families, and the less educated.27 Families without Internet access often cite
Frischmann, supra note 2, at 1017-19 (noting the exchange of ideas is the largest social
benefit of the Internet).
19. Frischmann, supra note 2, at 1018-19.
20. Id. at 1019.
21. See Pope, supra note 6 (noting the importance of students having Internet skills);
Wireless Philadelphia Executive Committee, supra note 8 (noting that the lack of affordable
broadband “limits educational opportunities, job opportunities, and participation in many
dimensions of modern society”).
22. Larry Irving, Introduction to FALLING THROUGH THE NET, supra note 1, at xiii.
23. See Wireless Philadelphia Executive Committee, supra note 8. In addition to
imposing limits, “unequal access to Internet services is thought to contribute to widening
inequalities in income, wealth, and power.” Ferguson, supra note 7. Ferguson argues that
access to computers and related technology is not the problem since prices have fallen for
such items. Id.; see also FALLING THROUGH THE NET, supra note 1, at 2 (noting the shrinking
divide on computer ownership between certain income and education levels). Instead, the cost
of accessing broadband Internet is the larger issue. See Ferguson, supra note 7.
24. See Steven A. Augustino, The Cable Open Access Debate: The Case for a
Wholesale Market, 8 GEO. MASON L. REV. 653, 656-57 (2000).
25. FCC FOURTH REPORT, supra note 17, at 35-36.
26. Id. at 34-35. In what is surely an understatement, the FCC remarked, “It generally
appears that low-income populations subscribe to advanced services at lower levels than high-
income populations.” Id. at 34. The gap, however, between the highest-income and the lowest-
income zip codes in actually having the service available is 99% versus 82%. Id. at 35.
27. Irving, Introduction to FALLING THROUGH THE NET, supra note 1, at xiii.
2006] BLOCKING ACCESS TO THE INTERNET 327
the cost as the reason for not subscribing to an Internet service or for
canceling Internet service.28 A subscription to Comcast’s cable Internet
service ranges between $43 and $58 per month.29 Currently, the presence of
infrastructure for residential access to broadband far outpaces subscription
rates.30 In large part, this is due to the expense of broadband access.31
28. See A NATION ONLINE, supra note 1, at 13-15 (finding that nearly 39% of people
said that high-speed Internet service was too expensive); FALLING THROUGH THE NET, supra
note 1, at 33.
29. Comcast Cablevision, the country’s largest cable-based Internet provider, charges
about $43 per month (in Camden County, New Jersey) for high-speed Internet service if the
customer has cable television service and about $58 per month without cable television
service. See Comcast, Select a Package, http://www.comcast.com (follow “Shop: High-Speed
Internet” hyperlink; then enter location address) (last visited Feb. 25, 2007). Currently,
Comcast controls 21% of the broadband subscribers. Christopher S. Yoo, Would Mandating
Broadband Network Neutrality Help or Hurt Competition? A Comment on the End-to-End
Debate, 3 J. ON TELECOMM. & HIGH TECH. L. 23, 53 (2004). The FCC estimates that cable
service ranges in price from $35 to $80 per month. FCC FOURTH REPORT, supra note 17, at 14.
AT&T charges between $15 and $35 per month for service depending on the plan, plus $150
to $200 for a technician to install the service. DSL Residential Service—AT&T Yahoo! High
Speed Internet, http://www.att.com/gen/general?pid=6431 (last visited Feb. 25, 2007).
Verizon, the second largest DSL provider, offers its fastest DSL high-speed service for $30
per month with a one-year agreement after the sixth month and for $38 per month with a
month-to-month agreement. Verizon High Speed Internet, http://www22.verizon.com/
content/consumerdsl/plans/ all+plans/all+plans.htm (last visited Feb. 25, 2007). The cost of
neither the Comcast nor Verizon services includes equipment. See Comcast, Select a Package,
supra; Verizon High Speed Internet, supra.
While both cable and DSL provide high-speed Internet service, this Note focuses on
cable broadband service. Until recently, cable and DSL were regulated differently, with DSL
having to open its infrastructure to competing Internet Service Providers (“ISPs”). See infra
Parts III.B&C. Also, cable ISPs dominate the residential broadband market, with DSL
focusing more on business customers. See Charles B. Goldfarb, Telecommunications Act:
Competition, Innovation, and Reform (CRS Report for Congress), 852 PLI/PAT 389, 410
(2005). Because of this, some commentators argue the two services do not even really
compete with each other. See, e.g., Ferguson, supra note 7. Cable controls between two-thirds
and three-quarters of the broadband market. See FCC FOURTH REPORT, supra note 17, at 16;
Soriano et al., supra note 4, at 2. But see Crandall et al., supra note 14, at 526 (arguing that the
broadband market is more competitive than it has ever been). In total, cable and DSL control
98% of the residential and small business broadband markets. Christopher T. Heun,
Government Bridging the Digital Divide, INTERNETWEEK, Aug. 12, 2005, available at
http://www.freepress.net/news/10035. For an in-depth discussion of the cable Internet
industry, see infra Part IV.
30. See FCC FOURTH REPORT, supra note 17, at 32 (“[W]e are aware that consumer
adoption of broadband, at least at present, is lower than actual deployment of infrastructure.”);
Gallagher Address, supra note 12 (finding that broadband is available in 93% of U.S. homes);
Soriano et al., supra note 4, at 3 (estimating that, in 2005, broadband would be accessible in
94% of residences, but subscription rates would be less than 56%).
328 RUTGERS LAW JOURNAL [Vol. 38:321
The FCC estimates that less than 7% of zip codes in the United States do
not have access to high-speed Internet lines.32 More than half of all adults
have access to broadband Internet, either at work or at home, but only about
one-third of them have a broadband connection in their homes.33 Even
among adults who have been online at home for ten or more years, only 56%
Critics of cable Internet Service Provider (“ISP”) pricing have proposed
that cable companies open their infrastructure to competing ISPs, or “open
access.”35 Open access allows competing ISPs to transmit over existing
infrastructure owned by cable companies, while the ISPs perform the actual
applications.36 Regulations governing cable Internet, however, do not require
open access or assist in making cable broadband Internet affordable.37
III. TECHNOLOGICAL, REGULATORY, AND LEGAL BACKGROUND
A. How Cable Broadband Works
Traditionally, Internet “dial-up” service was available for residential use
via “narrowband” telephone lines.38 The number of broadband subscribers
surpassed the number of dial-up subscribers for the first time in 2004.39 Both
technologies, essentially, have a transmission component—whether over
telephone or cable wires—and an ISP, or applications, component that
31. See Soriano et al., supra note 4, at 3 (estimating that broadband costs three to five
times more than dial-up).
32. FCC FOURTH REPORT, supra note 17, at 30. The report notes, however, that the
presence of subscribers does not mean that service is “available throughout the zip code.” Id.
33. Id. at 32.
35. See, e.g., Augustino, supra note 24, at 671-72 (proposing that the FCC require cable
companies to sell transmission service wholesale to ISPs). Much of the “open access” debate
has focused on principles of “network neutrality”—the idea that owners of Internet
infrastructure, like cable lines, not be able to discriminate against programs and applications
users employ on the Internet—rather than consumer accessibility. See, e.g., Justin Brown,
Fostering the Public’s End-to-End: A Policy Initiative for Separating Broadband Transport
from Content, 8 COMM. L. & POL’Y 145, 177 (2003) (arguing from a content-discrimination
point of view); Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. ON TELECOMM.
& HIGH TECH. L. 141, 145 (2003) (framing the debate from the perspective of innovation).
36. See Brown, supra note 35, at 176-77. For an in-depth discussion of the workings of
cable Internet, see infra Part III.A. For reasons discussed, see infra Part III.C, this Note asserts
open access is an unlikely solution to bridging the digital divide.
37. See infra Part III.
38. See A NATION ONLINE, supra note 1, at 5.
39. See Gallagher Address, supra note 12.
2006] BLOCKING ACCESS TO THE INTERNET 329
actually brings users to the Internet.40 In order for the ISP and the
infrastructure to work together, they must be compatible.41 The Internet,
itself, is a series of interconnected networks that contains the Web pages and
information that users seek out.42
Cable companies are the “backbone” providers of the Internet—the
“high-bandwidth, long-haul network providers that carry traffic between a
limited number of recognized locations.”43 Using this backbone, the ISP
provides access and runs Internet applications like e-mail.44 The ISP acts as a
“portal” linking the user to the Internet.45 The ISP delivers packets of
information over the lines to the “last mile” of a network, moving the
information from a central facility to the user.46 The last mile of a broadband
network takes over the routing function of an ISP, delivering the requested
information to users.47
40. See Yoo, supra note 29, at 31-32. The major difference between broadband and
narrowband is the speed at which they carry information. See FCC, Broadband, supra note 3.
Broadband delivers information in excess of 200 kilobits per second, but typically exceeds 1.5
megabits per second. Id. Comcast reports that it provides six megabits per second service,
with the option to pay extra for either eight megabits per second service or a “PowerBoost”
option providing speeds up to twelve megabits per second. See Comcast, Explore High-Speed
Internet, http://www.comcast.com (follow “Learn: High-Speed Internet” hyperlink; then
follow “Pure Broadband Speed: Way Faster Than DSL” hyperlink) (last visited Feb. 25,
2007). That means, for example, a user can download John Lennon’s “Imagine” in 6.5
minutes using a typical dial-up connection, versus 14 seconds using a 1.5 megabit broadband
connection. See Martindale’s “The Reference Desk”: Download Time Calculator, http://www.
martindalecenter.com/AATimeCalc.html (last visited Feb. 25, 2007).
41. See Cooper, supra note 15, at 1042-43. If the infrastructure provider restricts the
network, the ISP may not work correctly, affecting the quality of the ISP’s service. Id. at
42. See Yoo, supra note 29, at 30.
43. Id. at 31. Cable providers also are able to separate the frequency between the
television and Internet signals. Id. at 33.
44. Inquiry Concerning High-Speed Access to the Internet over Cable & Other
Facilities, 17 F.C.C.R. 4798, 4822 (2002); see also Brief Amicus Curiae of the ACLU, supra
note 8, at 11 (analogizing the cable lines to a highway and the ISP to the companies that own
the cars that drive on the road).
45. Brown, supra note 35, at 155.
46. Yoo, supra note 29, at 31-32.
47. Id. at 34. The open-access debate surrounds the last mile of a cable Internet
company’s infrastructure. See Brown, supra note 35, at 152; Cooper, supra note 15, at 1013.
ISPs that want to compete with the cable company’s ISP ask to interconnect at the last mile of
a cable company’s infrastructure and provide their own applications. See Goldfarb, supra note
29, at 418. Proponents of open access would restrict a cable company’s ability to integrate its
ISP with the pure transmission, allowing independent ISPs to provide the applications. See id.
330 RUTGERS LAW JOURNAL [Vol. 38:321
B. The FCC Declares Cable Broadband an Information Service
The Telecommunications Act of 1996 (“the Act”) requires the FCC to
“encourage the deployment . . . of advanced telecommunications capability
to all Americans . . . by utilizing, in a manner consistent with the public
interest, convenience, and necessity, price cap regulation, regulatory
forbearance, measures that promote competition . . . or other regulating
methods that remove barriers to infrastructure investment.”48 While not
specifically dealing with broadband Internet, the Act defines “advanced
telecommunications capability” as “high-speed, switched, broadband
telecommunications capability that enables users to originate and receive
high-quality voice, data, graphics, and video telecommunications using any
technology[,]” “without regard to any transmission media or technology[.]”49
As such, a strategic goal of the FCC is that “[a]ll Americans should have
affordable access to robust and reliable broadband products and services.”50
Despite that given policy, the FCC defined cable-based broadband
Internet as an information service51 rather than a telecommunications service,
thereby protecting it from the responsibilities of a common carrier.52 As a
48. Telecommunications Act of 1996, Pub. L. No. 104-104, § 706(a), 110 Stat. 56, 153.
49. Id. § 706(c)(1).
50. FCC Strategic Goals: Broadband, supra note 10; see also Goldfarb, supra note 29,
at 407 (“The general objective of the 1996 Act was to open up markets to competition by
removing unnecessary regulatory barriers to entry. Congress attempted to create a regulatory
framework for the transition from primarily monopoly provision to competitive provision of
telecommunications services.” (footnote omitted)). But see Soriano et al., supra note 4, at 3
(discussing the fact that low subscription rates to cable- and DSL-based high-speed Internet
are in part due to the high cost and lack of “must-have” content).
51. Inquiry Concerning High-Speed Access to the Internet over Cable & Other
Facilities, 17 F.C.C.R. 4798, 4802 (2002) (“[W]e conclude that cable modem service, as it is
currently offered, is properly classified as an interstate information service, not as a cable
service, and that there is no separate offering of telecommunications service.”); see also Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 988 (2005) (“The
[FCC] conceded that, like all information-service providers, cable companies use
‘telecommunications’ to provide consumers with Internet service; cable companies provide
such service via the high-speed wire that transmits signals to and from an end user’s
computer.”); id. at 1000-01 (“[T]he [FCC] provided a reasoned explanation for treating cable
modem service differently from DSL service.”).
52. 47 U.S.C. § 153(44) (2000) (“The term ‘telecommunications carrier’ means any
provider of telecommunications services . . . . A telecommunications carrier shall be treated as
a common carrier . . . .”); see id. § 153(46) (“The term ‘telecommunications service’ means
the offering of telecommunications for a fee directly to the public . . . .”); id. § 153(43) (“The
term ‘telecommunications’ means the transmission, between or among points specified by the
user, of information of the user’s choosing, without change in the form or content of the
information as sent and received.”). This classification threatens the congressional goal of
2006] BLOCKING ACCESS TO THE INTERNET 331
common carrier, cable Internet providers would have had to open
transmission lines to competitors.53 Allowing competition would have
lowered the cost of cable Internet service and made it more widely available
to people who currently cannot afford it.54 Until recently, the FCC regulated
telephone companies that provide DSL broadband Internet access as
affordable broadband access for all Americans. Brief of the National Ass’n of Regulatory
Utility Commissioners as Amicus Curiae Supporting Respondents and Affirmance of the
Decision Below at 4, Brand X, 545 U.S. 967 (Nos. 04-277, 04-281) (“This novel classification
carries serious ramifications for State universal service . . . and consumer protection
policies.”); Brown, supra note 35, at 149 (“Depending on how policy develops, cable
operators . . . may be able to discriminate on the terms and conditions of access it offers to
competitors and the service it provides to customers, including the potential to preclude users
from taking full advantage of the freedoms and discretion over what broadband applications,
services and content they experience.”).
53. See 47 U.S.C. § 201 (creating common carrier duties to allow competitors to access
their lines and to charge consumers reasonable rates); id. § 202 (“It shall be unlawful for any
common carrier to make any unjust or unreasonable discrimination in charges . . . .”); id. §
203 (requiring common carriers to file charge schedules with the FCC, limiting the right to
change the schedule, and imposing penalties for violations); id. § 204(a)(1) (permitting the
FCC to hold a hearing to determine the lawfulness of any rate revisions by a common carrier);
id. § 204(b) (permitting the FCC to authorize part of a common carrier’s new charge if it is
“just, fair, and reasonable”); id. § 251 (imposing numerous duties on telecommunications
carriers, including the duty to interconnect with other telecommunications providers and to
provide “unbundled” services); id. § 254 (requiring common carriers to contribute to a fund
for universal access); Brand X, 545 U.S. at 975 (“Telecommunications carriers . . . must
charge just and reasonable, nondiscriminatory rates to their customers, design their systems so
that other carriers can interconnect with their communications networks, and contribute to the
federal ‘universal service’ fund.” (citations omitted)); Cable Modem Service is an Information
Service and a Telecommunications Service, COMPUTER & INTERNET LAW., Dec. 2003, at 26,
26 (“[C]able-owned or cable-affiliated ISPs, unlike most dial-up and many DSL ISPs,
essentially own the ‘last mile’ . . . giving them the power to restrict other ISPs’ access to cable
54. FALLING THROUGH THE NET, supra note 1, at 78 (“Competition is a significant
answer to providing affordable access to . . . the Internet . . . .”).
55. Press Release, FCC, FCC Eliminates Mandated Sharing Requirement on
Incumbents’ Wireline Broadband Internet Access Services: Decision Places Telephone and
Cable Companies on Equal Footing (Aug. 5, 2005) [hereinafter FCC Press Release], available
at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260433A1.doc (declaring that the
FCC would treat DSL as an information service and give competing ISPs one year to stop
using the infrastructure provider’s lines); see also Brand X, 545 U.S. at 1001 (stating that the
treatment of DSL was based on the historic regulation of telephone companies); Sarah North,
New “Unbundling” Rules: Will the FCC Finally Open up Cable Broadband?, 2002 DUKE L.
& TECH. REV. 16, ¶ 1 (“The FCC rules, which granted new competitors access to incumbent
companies’ equipment, were supposed to increase competition . . . . But the FCC ignored
more than half the problem, disregarding the competitive impact of cable companies who
332 RUTGERS LAW JOURNAL [Vol. 38:321
While telecommunications is the transfer of information unchanged
between two points of the user’s choosing,56 an “information service” is
the offering of a capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications, and includes electronic publishing, but 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
The FCC rested its declaratory ruling on the “functions that cable modem
service makes available to its end users.”58 Using that analysis, the FCC
found that cable Internet service “supports” e-mail and maintaining a
connection to the World Wide Web.59 Therefore, “[c]able modem service is
not itself and does not include an offering of telecommunications service to
subscribers.”60 Acknowledging there is a telecommunications component in
provide Internet service.”). But see Appropriate Framework for Broadband Access to the
Internet over Wireline Facilities, 17 F.C.C.R. 3019, 3028 (2002) (concluding “tentatively” that
DSL is an information service); Kevin Werbach, The Federal Computer Commission, 84 N.C.
L. REV. 1, 67 (2005) (“[The FCC] adopted an order in early August 2005 effectively
classifying DSL service . . . as an information service, no longer subject to [common carrier]
56. 47 U.S.C. § 153(43).
57. Id. § 153(20); see also Inquiry Concerning High-Speed Access to the Internet over
Cable & Other Facilities, 17 F.C.C.R. 4798, 4809 (2002) (“The functions [of cable modem
service] can be categorized as Internet connectivity, enhanced applications, operations, and
customer service.”); id. at 4815 (concluding that it is irrelevant that a user can choose an ISP
independent of the cable company providing transmission, because the cable company only
provides both the transmission and the ISP functions without a separate offering of the
58. Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4821.
59. Id. at 4822.
60. Id. at 4823. But see Brand X, 545 U.S. at 1006-07 (Scalia, J., dissenting) (“The
relevant question is whether the individual components in a package being offered still
possess sufficient identity to be described as separate objects of the offer, or whether they
have been so changed by their combination with the other components that it is no longer
reasonable to describe them in that way.”); id. at 1007 (“[I]t would be odd to say that a car
dealer is in the business of selling steel or carpets because the cars he sells include both steel
frames and carpeting.”); id. at 1009 (“[C]ustomers shopping for dial-up or DSL service will
not be able to use the Internet unless they get both someone to provide them with a physical
connection and someone to provide them with applications and functions . . . . [C]ustomers
will regard the competing cable-modem service as giving them both computing functionality
and the physical pipe by which that functionality comes to their computer . . . .”).
2006] BLOCKING ACCESS TO THE INTERNET 333
cable Internet service, the FCC argued the “telecommunications component
is not, however, separable from the data-processing capabilities of the
service.”61 A consequence of the FCC classification of cable modem Internet
service as an information service, and not as a telecommunications service, is
that cable companies do not have to make their lines accessible to competing
The FCC reasoned that the Act “does not clearly indicate how cable
modem service should be classified or regulated.”63 The FCC, therefore,
based its ruling on the “nature of the functions that the end user is offered.”64
Because broadband companies offer services like e-mail, it does not matter if
the end user takes advantage of the content or just uses the transmission
service: cable Internet is an information service.65 The FCC declined to
recognize the transmission as a separate telecommunications service, noting
that the definition of information service states that such service can use
61. Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4823.
62. Brown, supra note 35, at 151-52; see also North, supra note 55, ¶ 5 (“[The
information service] classification removes [cable companies] from the requirements of the
Act, because the Act specifically states, ‘[I]f a cable operator or affiliate thereof is engaged in
the provision of telecommunications service . . . the provisions of this title shall not apply to
such cable operator or affiliate for the provision of telecommunications services.’” (quoting 47
U.S.C. § 541(b)(3)(A)(ii))); Adam Thierer, Are “Dumb Pipe” Mandates Smart Public Policy?
Vertical Integration, Net Neutrality, and the Network Layers Model, 3 J. ON TELECOMM. &
HIGH TECH. L. 275, 283 (2005). Though Thierer argues against common carrier requirements,
While incumbent local exchange carriers [providing DSL] have faced an extensive
array of infrastructure sharing mandates, cable operators have thus far escaped similar
mandates to share their networks with rivals at regulated rates. In fact, federal
regulators have essentially crafted an asymmetrical industrial policy that has
quarantined cable operators from forced access regulations in order to ensure they
become formidable rivals to the Baby Bells.
Thierer, supra, at 283.
63. Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4819.
64. Id. at 4822.
65. Id. at 4822-23.
66. Id. at 4823. The FCC reasoned:
[T]he Act distinguishes “telecommunications” from “telecommunications service.”
The Commission has previously recognized that “[a]ll information services require
the use of telecommunications to connect customers to the computers or other
processors that are capable of generating, storing, or manipulating information.”
Although the transmission of information to and from these computers may constitute
“telecommunications,” that transmission is not necessarily a separate
“telecommunications service.” We are not aware of any cable modem service
334 RUTGERS LAW JOURNAL [Vol. 38:321
The FCC’s ruling, however, never addressed whether the definitions
Congress passed in the Act call for the FCC to consider the information
component of an information service and the transmission component
separately.67 The definition of information service states that the content of
an information service is delivered “via telecommunications,” not that the
provider that has made a stand-alone offering of transmission for a fee directly to the
public, or to such classes of users as to be effectively available directly to the public.
Further . . . there is no Commission requirement that such an offering be made.
Id. (footnotes omitted); see Transcript of Oral Argument at 12, Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Nos. 04-277, 04-281) (statement of
Deputy Solicitor General Thomas G. Hungar in support of Petitioner) (“[I]f cable companies,
tomorrow, start offering pure cable transmission . . . on a nondiscriminate basis, that would
[be] regulated as a telecommunications service.”). But see Brief Amicus Curiae of the ACLU,
supra note 8, at 7 (“[Cable broadband service] provides both the pipeline and the information
that travels over the pipeline. These separate functions require a separate legal and factual
67. Compare Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4824 (“[W]e do
not believe that the fact that cable modem service is provided over the cable operator’s own
facilities, without more, necessarily creates a telecommunications service separate and apart
from the cable modem service.”), with 47 U.S.C. § 153(20) (2000) (“The term ‘information
service’ means the offering of a capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via telecommunications, and
includes electronic publishing, but 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.” (emphasis added)), and Brand X, 545 U.S. at 1010 (Scalia, J.,
dissenting). Arguing that cable broadband represented two distinct services, Justice Scalia
When cable-company-assembled information enters the cable for delivery to the
subscriber, the information service is already complete. The information has been (as
the statute requires) generated, acquired, stored, transformed, processed, retrieved,
utilized, or made available. All that remains is for the information in its final,
unaltered form, to be delivered (via telecommunications) to the subscriber.
Brand X, 545 U.S. at 1010 (Scalia, J., dissenting).
2006] BLOCKING ACCESS TO THE INTERNET 335
two must be considered part of the same whole.68 The FCC insisted,
however, that the statutory scheme created one distinct service, not two.69
C. National Cable & Telecommunications Ass’n v. Brand X Internet
1. The Majority
The United States Supreme Court in 2005 upheld the FCC’s
classification of cable-based Internet as an information service in National
Cable & Telecommunications Ass’n v. Brand X Internet Services (“Brand
X”),70 reversing one Ninth Circuit case holding that cable Internet was a
telecommunications service subject to common carrier responsibilities, and
repudiating the reasoning of an earlier case upon which the Ninth Circuit
relied.71 Writing for the majority, Justice Thomas applied the so-called
68. 47 U.S.C. § 153(20); Brief of the National Ass’n of Regulatory Utility
Commissioners as Amicus Curiae Supporting Respondents and Affirmance of the Decision
Below, supra note 52, at 11-12 (“Nowhere in the Act is there an exception to the imposition of
[common carrier] mandates on a telecommunications service just because it is bundled with
other services.”); Brief of Amicus Curiae by the State of New Jersey, Board of Public Utilities
in Support of the Respondents at 3, Brand X, 545 U.S. 967 (Nos. 04-277, 04-281) (“[A]
telecommunications provider may also provide non-telecommunications services, for example
information services, such that the Communications Act reflects an understanding of a
separate regulatory environment.”).
69. Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4824. But see id. at 4870
(dissenting statement of Commissioner Michael J. Copps) (“The decision . . . strays far afield
from the regulatory construct established by Congress. . . . The statute makes clear that, to the
extent that a cable operator serves as a common carrier . . . the regulations [for cable
operators] do not apply. . . . A powerful case has been made that cable modem services should
also be subject to [common carrier regulations].”).
70. 545 U.S. 967 (2005).
71. See Brand X Internet Servs. v. FCC, 345 F.3d 1120, 1132 (9th Cir. 2003) (per
curiam) (holding that broadband Internet is a telecommunications service under the Act),
rev’d sub nom. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967
(2005); AT&T Corp. v. City of Portland, 216 F.3d 871, 880 (9th Cir. 2000) (same). But see
Liberty Cablevision of P.R., Inc. v. Municipality of Caguas, 417 F.3d 216, 224 (1st Cir. 2005)
(holding, in light of the Brand X decision, that cable-based Internet is not a
“telecommunications service”); U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 580 (D.C. Cir.
2004) (holding that the FCC did not have to force incumbent local exchange carriers to
unbundle its broadband service when that would impede “infrastructure investment”); U.S.
Telecom Ass’n v. FCC, 290 F.3d 415, 428 (D.C. Cir. 2002) (holding that the FCC did not
account for competition from cable Internet when it ordered DSL unbundling of ISP and
transmission services); MediaOne Group, Inc. v. County of Henrico, 257 F.3d 356, 365 (4th
Cir. 2001) (holding that MediaOne cable could not be forced to open its cable lines to
336 RUTGERS LAW JOURNAL [Vol. 38:321
Chevron72 test—requiring judicial deference to administrative agency
decisions—to the FCC’s ruling that cable-based Internet is an information
service.73 Under Chevron, the Court reasoned “ambiguities in statutes within
an agency’s jurisdiction to administer are delegations of authority to the
agency to fill the statutory gap in reasonable fashion.”74 Inconsistency in
administrative agency policy is not grounds for rejecting the Chevron test.75
As such, the agency can provide an “authoritative” interpretation of an
For the Court, the reasonableness of the FCC’s interpretation turned on
whether the word “offer” in the Act was ambiguous.77 Construing “offering”
competing ISPs because federal law prohibited requiring a cable company to “provide open
access to its telecommunications facilities”); Comcast Cablevision of Broward County, Inc. v.
Broward County, 124 F. Supp. 2d 685, 693 (S.D. Fla. 2000) (“The Broward County [open-
access] ordinance invidiously impacts a cable operator’s ability to participate in the
information market. The cable operator, unlike a telephone service, does not sell transmission
but instead offers a collection of content.”). The District of Columbia Circuit recently
distinguished Brand X and held that, under the Communications Assistance for Law
Enforcement Act, broadband Internet is telecommunications, not an information service. See
Am. Council on Educ. v. FCC, 451 F.3d 226, 232 (D.C. Cir. 2006).
72. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844-45
73. Brand X, 545 U.S. at 979-80.
74. Id. at 980 (citing Chevron, 467 U.S. at 865-66); see also id. at 1003 (Breyer, J.,
concurring) (“I join the Court’s opinion because I believe that the [FCC’s] decision falls
within the scope of its statutorily delegated authority—though perhaps just barely.”).
75. Id. at 981 (majority opinion).
76. See id. at 983. When a statute is ambiguous,
the agency’s decision to construe that statute differently from a court does not say
that the court’s holding was legally wrong. Instead, the agency may . . . choose a
different construction, since the agency remains the authoritative interpreter (within
the limits of reason) of such statutes. In all other respects, the court’s prior ruling
remains binding law . . . . The precedent has not been “reversed” by the agency, any
more than a federal court’s interpretation of a State’s law can be said to have been
“reversed” by a state court that adopts a conflicting (yet authoritative) interpretation
of state law.
Id. at 983-84. But see id. at 1016 (Scalia, J., dissenting) (“The Court today moves to solve [the
problem of proper deference to an administrative agency] by inventing yet another
breathtaking novelty: judicial decisions subject to reversal by Executive officers.”); id. at 1017
(“Article III courts do not sit to render decisions that can be reversed or ignored by Executive
officers.”); id. at 1017 n.12 (“Once a court has decided upon its de novo construction of the
statute, there no longer is a ‘different construction’ that is ‘consistent with the court’s
holding,’ and available for adoption by the agency.” (citation omitted)).
77. Id. at 987-88 (majority opinion); see 47 U.S.C. § 153(46) (2000) (defining a
“telecommunications service” as “the offering of telecommunications for a fee directly to the
2006] BLOCKING ACCESS TO THE INTERNET 337
in terms of the Act, the Court decided that the offer does not “unambiguously
require” that cable Internet be divided into the transmission offering and the
content offering.78 Based on consumer use, the Court declared the
transmission and service that cable Internet provides to be “sufficiently
integrated” so that it is “reasonable to describe the two as a single, integrated
offering.”79 The Court declared it “no misuse of language” to describe cable
78. Brand X, 545 U.S. at 989. Justice Thomas wrote:
The integrated character of [the cable ISP’s] offering led the [FCC] to conclude that
cable modem service is not a “stand-alone,” transparent offering of
This construction passes Chevron’s first step. . . . The word “offering” as used in
§ 153(46) . . . does not unambiguously require [separating cable Internet’s dual
functions]. Instead, “offering” can reasonably be read to mean a “stand-alone”
offering of telecommunications, i.e., an offered service that, from the user’s
perspective, transmits messages unadulterated by computer processing. That
conclusion follows not only from the ordinary meaning of the word “offering,” but
also from the regulatory history of the Communications Act.
Id. at 988-89 (citation omitted). Declaring the Act’s use of the word “offer” ambiguous,
Justice Thomas defined the word in terms of the finished, integrated product. Id. at 990.
Justice Scalia, too, looks at “offer” from the perspective of the consumer, but argues that the
product is not so integrated that the consumer cannot recognize the individual components. Id.
at 1008 (Scalia, J., dissenting). But see U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 576-77
(D.C. Cir. 2004) (deciding that incumbent local exchange carriers “could not avoid
unbundling requirements by classifying certain features as ‘services’ rather than ‘network
elements’” because that would allow them to evade “a substantial portion of their unbundling
obligation” (citing Iowa Utils. Bd. v. FCC, 120 F.3d 753, 809 (8th Cir. 1997), aff’d in part,
rev’d in part on other grounds sub nom. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366
79. Brand X, 545 U.S. at 990. Justice Thomas’s opinion in Brand X strays from his two-
step view of cable-based Internet only three years earlier in National Cable &
Telecommunications Ass’n v. Gulf Power Co., 534 U.S. 327 (2002). Gulf Power, in part,
concerned the ability of cable companies to add attachments to utility poles for high-speed
cable Internet. See id. at 331-32. The decision in Gulf Power predated the FCC’s
determination that cable-based Internet is an information service. See id. at 348-50 (Thomas,
J., concurring in part and dissenting in part). Justice Thomas wrote:
Residential high-speed Internet access typically requires two separate steps. The first
is transmission from a customer’s home to an [ISP’s] point of presence. . . . The
second is a service delivered by an ISP to provide the connection between its point of
presence and the Internet. The [FCC] has classified the second step of this process . . .
as an “information service.” To date, however, the FCC has not classified the first
step of this process in the cable context.
Id. at 352 n.4 (citations omitted). Justice Thomas went on to write, “The relevant issue here . .
. is not whether Internet service is a telecommunications service. Rather, it is whether high-
speed Internet access provided through cable wires constitutes a telecommunications service.”
Id. at 356. Justice Thomas added that if an information service needed an “underlying
338 RUTGERS LAW JOURNAL [Vol. 38:321
companies as not offering the transmission, “even though [the transmission]
is essential to providing Internet access.”80 While using “discrete
components”—the transmission and the applications—the Court reasoned
that the service was “functionally integrated.”81 Given that the question is
“‘technical, complex, and dynamic,’” the Court concluded that the FCC was
“in a far better position to address these questions than” it was.82
telecommunications service[,]” “this suggests that [pole] attachments used to provide an
information service may always also provide a telecommunications service[.]” Id. at 358 n.10
(internal quotation marks and citation omitted); see also 47 U.S.C. § 224(d)(3) (applying the
pole attachment law “to the rate for any pole attachment used by a cable system . . . to provide
any telecommunications service” until the effective date of required regulations); AT&T
Corp. v. City of Portland, 216 F.3d 871, 879 (9th Cir. 2000) (“[T]he Communications Act
contemplates the provision of telecommunications services by cable operators over cable
80. Brand X, 545 U.S. at 990.
81. Id. at 991. The Court reasoned:
What cable companies providing cable modem service . . . “offer” is Internet service .
. . though they do so using (or “via”) the discrete components composing the end
product, including data transmission. Such functionally integrated components need
not be described as distinct “offerings.”
. . . The entire question is whether the products here are functionally integrated
(like the components of a car) or functionally separate (like pets and leashes). That
question turns not on the language of the Act, but on the factual particulars of how
Internet technology works and how it is provided, questions Chevron leaves to the
Commission to resolve in the first instance.
Id. (emphasis added); see also United States v. Microsoft Corp., 147 F.3d 935, 948 (D.C. Cir.
1998) (construing an integrated product as one that “combines functionalities” to offer
advantages unavailable when the products are separate). The District of Columbia Circuit in
the Microsoft antitrust case attempted to discern whether the Internet Explorer Web browser
and the Windows 95 operating system were one or two products, and determined that
“integration should exclude a case where the manufacturer has done nothing more than to
metaphorically ‘bolt’ two products together.” Microsoft Corp., 147 F.3d at 949.
82. Brand X, 545 U.S. at 1002-03 (quoting Gulf Power, 534 U.S. at 339). Justice
Thomas’s deference to FCC classifications mirrored the approach he took in Gulf Power. See
Gulf Power, 534 U.S. at 356 (Thomas, J., concurring in part and dissenting in part)
(recommending the remand of two consolidated cases to the FCC for a classification of high-
speed Internet access).
2006] BLOCKING ACCESS TO THE INTERNET 339
2. The Dissent83
Justice Scalia, joined in part by Justices Souter and Ginsburg, argued that
the FCC and the majority ignored the plain meaning of the statute and the
reality of the service being offered by the cable Internet companies.84
Describing the FCC’s reading of the Act as “implausible,” Justice Scalia
argued that cable companies did not cease to offer a telecommunications
service because they created a “package” of transmission and Internet
applications.85 In fact, the popularity of cable modem service has little to do
with the content provided by the company as an ISP; the service is popular
because of the high-speed access it provides.86 Realistically, the transmission
is separable from the content because subscribers often use an ISP that the
cable company does not provide, since the cable company’s ISP might not
have the functions or applications users desire.87 The FCC, however,
emphasized the content because cable companies offer a package and not
Justice Scalia agreed with the majority that the overarching question was
whether cable Internet offers a telecommunications service, which would
subject it to common carrier regulations.89 For Justice Scalia, though, the
83. Both Justices Stevens and Breyer wrote concurring opinions in Brand X, neither of
which addressed the substance of the case, but rather the proper deference to a regulatory
agency. See Brand X, 545 U.S. at 1003 (Stevens, J., concurring) (adding a caveat to the
majority opinion); id. at 1003-05 (Breyer, J., concurring) (refuting Justice Scalia’s
interpretation of the Court’s post-Chevron jurisprudence).
84. Id. at 1005 (Scalia, J., dissenting). Justices Souter and Ginsburg did not join Part II
of Justice Scalia’s dissent. See id. at 1005, 1014-20 (concerning the proper deference to
regulatory rulings). This Note will not directly address Part II of Justice Scalia’s dissent.
85. Id. at 1005-06.
86. Id.; see also id. at 1007 n.1 (pointing out that cable broadband companies advertise
speed “as one of its advantages over competitors”).
87. Id. at 1005.
88. Id. at 1005-06. Justice Scalia points outs that the first sentence of the FCC
rulemaking decision that classified cable Internet as an information service recognized the
division between the transmission and applications functions: “‘Cable modem service
provides high-speed access to the Internet, as well as many applications or functions that can
be used with that access, over cable system facilities.’” Id. at 1005 (footnote omitted and
emphasis added by Scalia, J.) (quoting Inquiry Concerning High-Speed Access to the Internet
over Cable & Other Facilities, 17 F.C.C.R. 4798, 4799 (2002)). Like the FCC, however, the
Court majority put the emphasis on the functioning of cable Internet, rather than the
transmission. Id. at 1005-06. Both the FCC and the Court majority focused on the cable
companies’ ISP service and in turn claimed that the companies do not “offer” subscribers the
high-speed Internet service because they do not offer the transmission separately. Id.
89. See id. at 1006-07.
340 RUTGERS LAW JOURNAL [Vol. 38:321
problem was not the dictionary definition of “offer,” but what the cable
companies actually offer subscribers: high-speed Internet access.90
The question, then, is whether the components are separable, or whether
they have so changed that they become one product that can no longer be
described as two separate offerings.91 While it is “odd” to say when buying a
car that a dealership sold “steel frames and carpeting,” Justice Scalia
reasoned that this would not be the case in all situations.92 As odd as it is to
say a car dealership sold steel frames and carpeting just because they were
components of a car, it is equally odd to say that a pizzeria does not offer
delivery but will bring the pizza to a customer’s house.93
In the same vein, the “telecommunications component” of cable Internet
service retains its “independent identity” from the consumer’s point of
view.94 Just as Internet access over telephone lines offers
91. Id. (“The relevant question is whether the individual components in a package being
offered still possess sufficient identity to be described as separate objects of the offer, or
whether they have been so changed by their combination with the other components that it is
no longer reasonable to describe them in that way.”); see supra note 81.
92. Brand X, 545 U.S. at 1007 (Scalia, J., dissenting). Justice Scalia wrote that while a
car dealership does not necessarily sell steel frames nor a water company hydrogen, “[t]here
are instances in which it is ridiculous to deny that one part of a joint offering is being offered
merely because it is not offered on a stand-alone basis.” Id. (internal quotation marks and
citation omitted). But see Bestfoods v. United States, 260 F.3d 1320, 1326 (Fed. Cir. 2001)
(“[W]e cannot conclude that it was arbitrary or capricious for [the United States Customs
Service] to consider substantially-transformed ingredients to be products of the country of
manufacture, even if the raw materials come from some foreign location.”); McCallum v. City
of Athens, 976 F.2d 649, 657 (11th Cir. 1992) (“[N]either the chlorine nor fluoride in the
present case is resold as chlorine or fluoride. Rather, the chemicals are combined with water
and transformed into an entirely distinct commodity. . . . Athens is engaged in the business of
selling treated water, not hydrated chlorine and fluoride.”).
93. Brand X, 545 U.S. at 1007 (Scalia, J., dissenting). Justice Scalia reasoned:
If . . . I call up a pizzeria and ask whether they offer delivery, both common sense
and common “usage” would prevent them from answering: “No, we do not offer
delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to
your house.” The logical response to this would be something on the order of, “so,
you do offer delivery.” But our pizza-man may continue to deny the obvious and
explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to
your house, we are not actually ‘offering’ you delivery, because the delivery that we
provide to our end users is ‘part and parcel’ of our pizzeria-pizza-at-home service and
is ‘integral to its other capabilities.’” Any reasonable customer would conclude at that
point that his interlocutor was either crazy or following some too-clever-by-half legal
Id. (footnote and citations omitted).
94. Id. at 1008.
2006] BLOCKING ACCESS TO THE INTERNET 341
telecommunications, cable Internet offers separate transmission and content
functions.95 The cable lines are “a conduit for the information services that
have already been ‘assembled’ by the cable company in its capacity as
ISP.”96 By the time the user accesses the content, the information service has
been performed, leaving “the information in its final, unaltered form, to be
delivered (via telecommunications) to the subscriber.”97 For this reason, it is
“perfectly clear” that cable Internet service offers telecommunications.98
Neither the FCC nor the Brand X majority considered the fact that
cable’s telecommunications and transport functions were divisible or
distinguishable from the final service.99 By deciding that cable ISPs
indistinguishably offer the transmission and content, both the FCC and the
Court told cable companies that they could evade common carrier
regulations by never unbundling their services.100 In doing so, the Court
95. Id. Justice Scalia added that in the case of dial-up and DSL Internet access, “the
physical transmission pathway to the Internet is sold—indeed, is legally required to be sold—
separately from the Internet functionality.” Id. Realistically, DSL customers know “that the.
physical connection is a necessary component for Internet access which, just as in the dial-up
context, is not provided by the ISP.” Id. at 1009 n.3; see also 47 U.S.C. § 153(46) (2000)
(defining “telecommunications service” as “the offering of telecommunications for a fee
directly to the public . . . regardless of the facilities used”).
96. Brand X, 545 U.S. at 1010 (Scalia, J., dissenting). But see supra note 57.
97. Brand X, 545 U.S. at 1010 (Scalia, J., dissenting). Justice Scalia added, though, that
while all cable modem services offer a telecommunications component, not all ISPs do, just
like not all restaurants must offer delivery just because a pizzeria does. Id. at 1010-11.
Declaring that cable Internet service is an information service as well as a telecommunications
service does not mean that all ISPs will have to offer telecommunications. Id.
98. Id. at 1014.
99. See id. at 990-91 (majority opinion) (deciding that cable companies are offering a
finished product, not two discrete services); id. at 1005-06 (Scalia, J., dissenting) (contending
that the FCC and the Court focused on the content rather than the transmission of cable
Internet service); Inquiry Concerning High-Speed Access to the Internet over Cable & Other
Facilities, 17 F.C.C.R. 4798, 4824 (2002) (“Our analysis, like the relevant statutory
definitions, focuses instead on the single, integrated information service that the subscriber to
cable modem service receives . . . .”).
100. See Transcript of Oral Argument, supra note 66, at 11 (statement of Deputy
Solicitor General Thomas G. Hungar in support of Petitioner) (agreeing that if a cable
company provided the transmission free of content it would be a telecommunications service);
see also Goldfarb, supra note 29, at 402 (“There is an expectation that providers of
information services will attempt to configure their service offerings in a fashion that will
maximize the likelihood that the FCC will classify them as pure information services for
342 RUTGERS LAW JOURNAL [Vol. 38:321
ensured cable Internet providers could escape competition.101 This Note
contends that by solely focusing on the end service that cable companies
offer, and not on the method and means by which that service is provided,
the FCC and the Court erred. Further, this Note argues that despite the
erroneous classification, cable companies would still find a way to escape
common carrier regulations to prevent competing ISPs from offering services
over their transmission lines. The FCC can forego imposing common carrier
regulations on telecommunications providers, and declared it would do so for
cable Internet providers.102 Reclassifying cable Internet, therefore, will not
provide greater opportunities to bring more people online. Thus, the FCC’s
policies have kept broadband out of the hands of the least fortunate, in
contravention of the Act’s dictate that broadband be available to all.103
Cable-based Internet, as it is currently offered, consists of two different
functions.104 The first function is the physical pipeline that carries
information between individual users and the network.105 The second is the
ISP function that allows access to the network and performs functions like
“caching,” or storing Web pages, and sending email.106 These services are
divisible, however, and there is no technological barrier to offering separate
transmission and accessibility functions.107 Some cable companies already
lease their lines to independent ISPs to provide the functionality.108
As Justice Scalia pointed out in his Brand X dissent, the components that
make up cable-based Internet are not like the components that make up a
regulatory purposes.”); Yoo, supra note 29, at 34 (arguing the technology encourages cable
Internet transmission providers to “bundle their offerings with ISP services”).
101. See generally infra Part IV.
102. See Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4825-26, 4847-48.
103. See, e.g., id. at 4870 (dissenting statement of Commissioner Michael J. Copps)
(arguing that classifying cable Internet as an information service goes outside of Congress’s
intention that telecommunications be subject to common carrier regulation).
104. See supra Part III.A for an in-depth discussion of cable-based Internet
105. See Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4823 (declaring that
there is no separate offering of a transmission service, but still transmission); Transcript of
Oral Argument, supra note 66, at 11-12 (statement of Deputy Solicitor General Thomas G.
Hungar in support of Petitioner) (acknowledging there is a transmission component to cable-
based Internet service); FCC, Broadband, supra note 3 (declaring that the Internet comes into
the home via, for example, cable lines).
106. Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4822 (declaring that
cable ISPs provide processing and interactivity in addition to transmission).
107. See Frischmann, supra note 2, at 1007 (noting that the Internet was designed for
open accessibility, so there would be no barriers to application providers using another
108. See Yoo, supra note 29, at 34.
2006] BLOCKING ACCESS TO THE INTERNET 343
car.109 Together, windshields, steel frames, carpets, and other items combine
to make a car.110 When combined, they have the characteristics of the
individual product, but each part serves a different purpose than it otherwise
would.111 In the same vein, cable Internet’s naked transmission and the
functionality are separable products that combine to provide an Internet
service.112 Unlike the car example, however, one could imagine buying
Internet service for the speed but not the functionality of a cable ISP.113 One
would never reasonably buy a car for one of the components—like the
frame—and then disregard the other parts when using it.
An apt metaphor for cable Internet service is that the wire is a highway
and the ISP provides the trucks driving on the highway.114 The road is used
to travel, just as the wire is used to transmit, and the trucks carry the
information.115 Although the cable companies own the road, it does not
follow that they have to own the trucks.116 Just as the trucks could not be
confused with the road, since each are performing different functions, the
Internet transmission cannot be confused with the ISP.117 Just like it would
be odd to say a car dealership sold steel, it would be equally odd to say that
someone driving on a road could not distinguish the car he was traveling in
from the road he was traveling on.
Had the Court overruled the FCC and declared cable Internet a
telecommunications service, cable Internet companies would have been
common carriers.118 The Act subjects common carriers to the possibility of
109. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1007
(2005) (Scalia, J., dissenting).
112. See, e.g., Inquiry Concerning High-Speed Access to the Internet over Cable &
Other Facilities, 17 F.C.C.R. 4798, 4799 (2002) (“Cable modem service provides high-speed
access to the Internet, as well as many applications or functions that can be used with that
access, over cable system facilities.” (footnote omitted)).
113. See Brand X, 545 U.S. at 1005 (Scalia, J., dissenting) (noting that cable Internet is
popular because of the speed with which it connects users to the Internet).
114. Brief Amicus Curiae of the ACLU, supra note 8, at 11.
117. See Yoo, supra note 29, at 34 (stating that an ISP routes the packets of
information through the network).
118. See 47 U.S.C. § 153(44) (2000) (declaring that telecommunications service
providers are common carriers).
344 RUTGERS LAW JOURNAL [Vol. 38:321
competition.119 But, even if the Court had overruled the FCC’s classification
of cable Internet service as an information service, the cable companies still
would not likely be subject to common carrier regulations. When the FCC
classified cable-based Internet as an information service, it announced that
even if cable Internet were a telecommunications service, it would waive the
requirement that cable companies make a “stand-alone offering” of the
transmission.120 The FCC “tentatively” concluded that “enforcement of . . .
common carrier regulation is not necessary for the protection of consumers
or to ensure that rates are just and reasonable and not unjustly or
unreasonably discriminatory.”121 The FCC did this despite the fact that its
own findings show the poor continue to fall behind better-off Americans
when it comes to access to broadband.122 The FCC has failed to address how
this is in the best interest of the public.123
119. See id. § 201(a) (declaring that common carriers have to make their infrastructure
available to competitors “where the [FCC] . . . finds such action necessary or desirable in the
120. Inquiry Concerning High-Speed Access to the Internet over Cable & Other
Facilities, 17 F.C.C.R. 4798, 4825, 4847-48 (2002); see also Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 1011-12 (2005) (Scalia, J., dissenting) (noting that
the FCC has the right to forego regulating cable Internet as a common carrier even if it meets
the regulatory classification of a telecommunications service). Under the Act, the FCC can
forebear regulating telecommunication services and carriers in some or all geographic markets
(1) enforcement of such regulation or provision is not necessary to ensure that the
charges, practices, classifications, or regulations by, for, or in connection with that
telecommunications carrier or telecommunications service are just and reasonable and
are not unjustly or unreasonably discriminatory;
(2) enforcement of such regulation or provision is not necessary for the protection
of consumers; and
(3) forbearance from applying such provision or regulation is consistent with the
147.U.S.C. § 160(a)(1)-(3). Historically, cable television has not been treated as a common
carrier. See United States v. Sw. Cable Co., 392 U.S. 157, 169 n.29 (1968) (noting that cable
television is not a common carrier). But see 47 U.S.C. § 224(d)(3) (applying the pole
attachment law “to the rate for any pole attachment used by a cable television system solely to
provide cable service”); AT&T Corp. v. City of Portland, 216 F.3d 871, 879 (9th Cir. 2000)
(“[T]he Communications Act contemplates the provision of telecommunications services by
cable operators over cable systems.”).
121. Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4848.
122. See FCC FOURTH REPORT, supra note 17, at 36 (noting that low-income people
lag behind high-income people in access to broadband).
123. This statement reflects the FCC’s general attitude toward the digital divide:
“Thus, although low-income populations may lag behind higher-income populations in
2006] BLOCKING ACCESS TO THE INTERNET 345
Since the Brand X decision, the FCC has classified DSL as an
information service, protecting it from sharing its lines with competing
ISPs.124 Additionally, on the same day the FCC announced it would protect
DSL providers from common carrier regulations, it adopted a non-binding
policy statement calling for open access, but not mandating it.125 The policy
called for deployment and open access: to allow consumers to access lawful
material “of their choice”; to give consumers the ability to “run applications
and use services of their choice”; to allow users to connect legal devices, like
wireless routers, that would not harm the network; and to give consumers
competition in the ISP market.126 While declaring that it would “incorporate
the above principles into its ongoing policymaking activities,” the FCC
adopted the policy at the same time it essentially cut off both competition
and open access to the DSL market.127 Without competitors, broadband
Internet providers have no reason to lower prices.128
Given that the FCC has reaffirmed its policy of not regulating broadband
Internet to provide universal access, reclassifying cable Internet as a
telecommunications service is not the way to provide affordable access to all.
Therefore, another model to provide universal access must be put forward in
order to make high-speed Internet available for all.
accessing broadband services, research indicates that broadband services are available to low-
income populations through subscription services as well as free public facilities.” Id.
124. See Goldfarb, supra note 29, at 430. Like cable, DSL providers will be free of
common carrier regulations. See id. Under the new rules, independent ISPs operating over a
competing ISP’s infrastructure will have one year to continue providing service to users. FCC
Press Release, supra note 55. Additionally, the line owners will have to continue contributing
to existing universal service mechanisms for 270 days following the order. See id.
125. FCC POLICY STATEMENT, supra note 1, at 2-3 & n.15; Goldfarb, supra note 29, at
430 (noting that on the day the FCC protected DSL providers from common carrier
regulations it adopted its new policy statement); see also Michael K. Powell, Preserving
Internet Freedom: Guiding Principles for the Industry, 3 J. ON TELECOMM. & HIGH TECH. L. 5,
10 (2004) (Then-FCC Chairman Michael K. Powell wrote, “Government regulation of the
terms and conditions of private contracts is probably the most fundamental intrusion on the
free market. This intrusion is particularly destructive where innovation and experimentation
are hallmarks of an emerging service. Such interference should be undertaken only where
there is weighty and extensive evidence of [provider] abuse”).
126. FCC POLICY STATEMENT, supra note 1, at 3; Powell, supra note 125, at 11
(stating that these principles provide a “clearer roadmap” for the broadband industry to avoid
future FCC regulation).
127. FCC POLICY STATEMENT, supra note 1, at 3; see Goldfarb, supra note 29, at 430.
128. See FALLING THROUGH THE NET, supra note 1, at 77 (noting that competition will
bring lower prices to Internet service).
346 RUTGERS LAW JOURNAL [Vol. 38:321
The FCC and Supreme Court decisions implicate more than the proper
legal standard for deference to administrative decisions; they affect the prices
people are going to pay for high-speed Internet service.129 Decades of cable
franchise regulations have given cable companies a monopoly over cable
television service in the municipalities in which they have a franchise.130
Cable companies offering broadband Internet service will now enjoy the
same monopoly as a result of the FCC and Supreme Court’s decisions that
cable Internet is an information service without an independent offering of a
telecommunications service.131 Where cable companies do not face
competition, low-income people suffer the most.132 Conversely, in areas
where cable companies face competition, they charge customers 15% less for
129. Michael Grebb, Broadband Fight Heads to Congress, WIRED NEWS, June 28,
2005, http://www.wired.com/news/digiwood/1,68021-0.html (“The fight focuses on arcane
legal issues, but holds serious consequences for consumer broadband prices and quality of
130. Compare 47 U.S.C. § 541(a)(1) (1988) (permitting franchise authorities to issue
one or more cable franchises within a jurisdiction), with Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. No. 102-385, § 7(a)(1), 106 Stat. 1460, 1483
(codified as amended at 47 U.S.C. § 541(a)(1) (1994)) (forbidding a cable franchise authority
from granting “exclusive” franchises). In the television market, franchised cable operators
hold 75% of the “multichannel video programming” market, versus satellite television.
Norman M. Sinel et al., Franchising Session: Recent Developments in Cable Law, 819
PLI/PAT 9, 21 (2005).
131. See Inquiry Concerning High-Speed Access to the Internet over Cable & Other
Facilities, 17 F.C.C.R. 4798, 4825 (2002) (noting that the FCC would not require cable
Internet services to provide open access to competitors). While DSL offers a competing
broadband service, in many ways it does not compete in the residential market with cable. See
Ferguson, supra note 7; supra note 29. Currently, cable controls almost two-thirds of the
residential broadband market. See Yoo, supra note 29, at 53. From a technical standpoint,
cable speeds significantly exceed DSL speeds. Compare Comcast, Explore High-Speed
Internet, supra note 40 (promising six megabits per second service with the opportunity for
enhanced service), with Verizon High Speed Internet, supra note 29 (promising speeds up to
three megabits per second).
132. Augustino, supra note 24, at 666 (“The subscribers who will suffer the most from
the incumbent cable system broadband monopoly are those who earn low incomes or live in
sparsely-populated areas. Many of them cannot subscribe to DSL services due to technical
limitations in the ILECs’ narrowband local exchange networks.” (footnote omitted)). If cable
companies do not have to offer open access, they will be able to dictate the terms on which
subscribers are able to access the Internet. Id.
133. Sinel et al., supra note 130, at 206.
2006] BLOCKING ACCESS TO THE INTERNET 347
Congress’s primary goal in adopting the Act was to ensure competition
in Internet services.134 Under the current regulatory regime and the realities
of cable deployment, however, that is not currently possible.135 While one
cable company might not control a nationwide market, all cable is local.136 If
a cable company has an exclusive franchise in a municipality, it will
represent a consumer’s only choice for cable broadband if companies have
no open access requirements.137 In some cases cable will represent a
134. See 47 U.S.C. § 230(b)(2) (2000) (noting that United States policy is “to preserve
the vibrant and competitive free market . . . for the Internet”); Telecommunications Act of
1996, Pub. L. No. 104-104, § 706(a), 110 Stat. 56, 153 (encouraging the deployment “of
advanced telecommunications capability to all Americans” through the use of, inter alia,
“measures that promote competition in the local telecommunications market”); see also
Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 476 (2002) (noting that the Act’s goal to
eliminate local telephone service monopolies was “both an end in itself and an important step
toward the Act’s other goals . . . in broader markets”).
135. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
1011-12 (2005) (Scalia, J., dissenting) (noting that the FCC has the right to forebear regulating
cable Internet as a common carrier even if it meets the regulatory classification of a
telecommunications service); Inquiry Concerning High-Speed Access, 17 F.C.C.R. at 4825
(noting that the FCC would not require cable Internet services to provide open access to
136. See Sarah G. Lopez, Note, Evaluation of the AOL Time Warner Consent Decree’s
Ability to Prevent Antitrust Harm in the Cable Broadband ISP Market, 17 ST. JOHN’S J. LEGAL
COMMENT. 127, 152 (2003) (“The cable systems service provider market is uniquely local,
because customers are bound to the cable system provider that has been designated for their
locality.”). Nationally there are numerous cable franchises, but “consumers generally do not
have a choice between them.” Id. at 145. Instead, the municipality that the consumer lives in
selects a cable company to provide cable service for all of the municipality’s residents. Id.
This gives the cable company a monopoly within “a given geographic region.” Id. at 145-46.
For that reason, the market for cable Internet should be narrowly defined. Cooper, supra note
15, at 1014. Cable service is “highly concentrated and composed of regional monopolies.”
Ferguson, supra note 7.
Others, though, have argued that the market is not too concentrated to affect competition.
See, e.g., Yoo, supra note 29, at 52. Yoo argued that the two largest broadband providers,
Comcast and SBC (prior to its purchase of AT&T), controlled 21 and 14% of the 2004
national market, respectively, allowing broadband providers to package the transmission and
ISP without posing a threat to competition. Id. This does not account for the fact that often one
cable company controls 100% of each local market. See Brown, supra note 35, at 191 (“Cable
operators are usually the only franchise holders in localities . . . and have modernized facilities
and partitioned channel capacity to provide broadband connectivity.”); Lopez, supra, at 151-
137. See Cooper, supra note 15, at 1030 (arguing that the market will not likely force
cable companies to provide open access); Lopez, supra note 136, at 152 (noting that within a
locality a cable company will have a “virtual monopoly” over cable broadband infrastructure);
cf. Verizon, 535 U.S. at 476 (relating that the Act fostered competition by ordering
monopolistic “incumbent local-exchange carriers to share their own facilities and services”
348 RUTGERS LAW JOURNAL [Vol. 38:321
consumer’s only choice for broadband.138 Cable already has a significant
competitive advantage in the broadband market that is likely to grow due to
its higher speed capabilities and its wider availability over DSL.139
While a person may live in an area where DSL is available, there is little
likelihood of cable getting a competitor despite Congress’s disapproval of
exclusive franchises.140 One reason is that there are high barriers to entry into
the cable market.141 Beyond the regulatory issues,142 a company that wants to
challenge an incumbent cable provider will have to build the infrastructure
with competitors). Some providers now package high-speed broadband access with their cable
television services. See, e.g., DIRECTV—High-Speed Broadband Internet Package,
http://www.directv.com/ DTVAPP /global/contentPage.jsp?assetId=900028 (last visited Feb.
138. See Augustino, supra note 24, at 654 (noting that cable is the only broadband
provider available in many residential and rural areas).
139. See id. at 660 (“Cable modem services are capable of far higher data transmission
speeds than DSL services because cable systems use coaxial cable, which has higher data
transmission capacity than standard copper phone lines.”). Augustino also notes that DSL only
is available to consumers “within 18,000 feet of a central office[,]” making cable more widely
available. Id.; see Craig A. Anderson, Toward a Fair Network Access Rate Policy for Rural
Broadband Service Providers, 14 COMMLAW CONSPECTUS 39, 39-40 (2005) (noting the small
number of rural broadband service providers); supra note 29.
140. See 47 U.S.C. § 541(a)(1) (2000) (forbidding a cable franchise authority from
granting “exclusive” franchises); see also Goldfarb, supra note 29, at 401-02 (noting that the
FCC has classified cable, and now DSL, in a way to forego common carrier regulations and
open access); Sinel et al., supra note 130, at 20 (“The absence of significant competition in the
cable market has been an issue of concern to the FCC and Congress.”).
141. See Augustino, supra note 24, at 668 (“[H]igh entry barriers to the cable
overbuild market—including prohibitive costs of installing cable facilities, onerous
franchising requirements and building access problems—effectively insulate the market power
of incumbent cable systems.”); see also Thierer, supra note 62, at 283 (noting that cable
companies have spent $84 billion on Internet infrastructure since 1996).
142. To obtain a cable franchise, the company must first go to the franchising authority
and show the ability in a “reasonable period of time” to provide service to all residences in the
franchise area, 47 U.S.C. § 541(a)(4)(A), the ability to “provide adequate public, educational,
and governmental access channel capacity, facilities, or financial support,” id. § 541(a)(4)(B),
and a showing of “financial, technical, or legal qualifications to provide cable service,” id. §
541(a)(4)(C). To provide service, a cable company must obtain a franchise—unless it was in
operation prior to July 1, 1984, id. § 541(b)(2), or is run by a “local or municipal authority,”
id. § 541(f). A cable company that is denied a franchise can bring an action in federal district
court or in state court. Id. § 555(a).
2006] BLOCKING ACCESS TO THE INTERNET 349
over the same pathways as existing cable lines.143 This is an expensive
proposition that is likely to scare off any would-be competitor.144
The lack of competition is likely to keep prices high and innovation
low.145 Already, cable broadband is expensive and out of reach for many.146
Without a challenger capable of matching cable Internet’s existing speed and
wide availability, a significant reduction in price seems unlikely.147 Also,
DSL service offered by large providers does not present an affordable
alternative.148 While the FCC has championed the notion of alternative
broadband providers—such as mobile broadband or fiber optics—providing
competition in the market, these alternatives are technologically inferior, not
widely available, and/or even more expensive than cable.149
143. See id. § 541(a)(2) (outlining the procedures for a cable company to install
infrastructure); Sinel et al., supra note 130, at 26-35 (noting that a competitor has to
“overbuild” existing lines and tracking litigation related to competition).
144. See Augustino, supra note 24, at 668 (noting that entry costs have insulated the
cable market); Cooper, supra note 15, at 1042 (“Cable companies have never competed at the
level of facilities. Large companies have never overbuilt one another. These have joint
ventures up to their eyeballs, including virtually all cable-based broadband service.”).
145. See Augustino, supra note 24, at 666 (noting that low-income people suffer under
the current pricing structure due to the cable monopoly); Cooper, supra note 15, at 1018
(arguing that a lack of competition and open access stifles creativity); Soriano et al., supra
note 4, at 3 (arguing that many do not subscribe to broadband because they cannot afford it);
Supreme Court Decision Seen as Boon to Cable Companies, 23 No. 3 ANDREWS COMPUTER &
INTERNET LITIG. REP. 3 (July 12, 2005) (“The [Brand X] decision means that cable operators
are not subject to the same nondiscriminatory pricing regulations, nor do they have to make
their networks available to their competitors. Some commentators think the result will mean
diminished competition, fewer programming choices and higher costs for consumers.”). But
see Thierer, supra note 62, at 287 (arguing that open access and network neutrality could stifle
the creation of new, competing broadband platforms); Yoo, supra note 29, at 54 (arguing that
allowing cable companies to vertically integrate the transmission and ISP service is unlikely to
hurt competition). See generally supra Part II.B (discussing the digital divide).
146. See Soriano et al., supra note 4, at 3.
147. Under the current regulatory regime, cable companies have no incentive to offer
wholesale prices to competing ISPs to offer alternative Internet access. See Augustino, supra
note 24, at 667. The market will likely not demand lower prices because no other service can
match cable broadband delivery. Id. at 667-68.
148. A subscription to AT&T DSL costs $15 (for the most basic package) to $35 per
month, or $180 to $420 per year. See supra note 29.
149. FCC FOURTH REPORT, supra note 17, at 3 (statement of Chairman Michael K.
Powell) (“Innovative entrepreneurs are replacing yesterday’s single-purpose networks with
different types of high-speed, full-service digital networks, using such technologies as Wi-Fi,
fiber-to-the-home, broadband over power lines, and satellite.”). The report notes that while the
Internet function of fiber technologies can transmit data at 100 megabits per second, id. at 16
(FCC majority), the technology is still in its “infancy” and available in only 128 communities
in thirty-two states, id. at 17. Service for slower versions—transmitting five megabits per
350 RUTGERS LAW JOURNAL [Vol. 38:321
While there may come a time when there are more than two competitive
forms of broadband, currently there are not.150 Even between cable and DSL,
cable enjoys a clear advantage, controlling about two-thirds to three-quarters
of the broadband market.151 Thus, if cable does not enjoy a monopoly in
broadband, it is the dominant pair in a duopoly.152 The competition between
cable and DSL has not yet had an effect on price though, as costs for the
second and receiving two and transmitting fifteen and receiving two—would range from $35
to $45 per month. Id. Also, there have been “initial trials” of broadband over power lines
(“BPL”), but no wide availability of BPL, which currently has speeds of three megabits per
second. Id. at 22-23. Satellite technology still cannot deliver broadband speeds of 200 kilobits
per second and can range from $50 to $100 per month, depending on the provider, with
installation fees ranging from $200 to $700. Id. at 23.
Licensed and unlicensed wireless technologies are far more available than fiber, power
line or satellite Internet services. See id. at 18-22; see also Goldfarb, supra note 29, at 441-42
(noting that “wireless service is growing faster than wireline service” and is reaching into
areas where broadband has previously been unavailable). Licensed wireless technology offers
mobile Internet service, but is slower and even more expensive than cable service. See Sprint
Wireless Connection Cards, http://www.wirelessbroadbandinternet4laptops.com/index.cfm
(last visited Feb. 26, 2007) (offering mobile Internet service for $60 per month for up to two-
megabit-per-second service, with equipment costs at about $100); BroadbandAccess Data
Plans—Verizon Wireless, http://www.verizonwireless.com (follow “Plans” hyperlink; then
follow “View all calling plans” hyperlink; then follow “BroadbandAccess” hyperlink) (last
visited Feb. 26, 2007) (offering mobile Internet for $80 per month for up to two-megabit-per-
second service, with equipment costs nearing $200). The FCC reports that these services can
provide between two and three megabits per second with prices ranging between $25 and
$130 per month. See FCC FOURTH REPORT, supra note 17, at 20-22.
150. See Heun, supra note 29 (noting that cable and DSL control 98% of the
residential and small business broadband market).
151. See FCC FOURTH REPORT, supra note 17, at 16, 29 (75.3%); Yoo, supra note 29,
at 53 (62%). The FCC, however, cited another study that showed DSL’s share at 42%. FCC
FOURTH REPORT, supra note 17, at 29-30. Most commentators, however, find a growing divide
between cable and DSL. See, e.g., Crandall et al., supra note 14, at 536 fig.1 (showing that
cable availability far outpaces DSL).
152. In addition to controlling the lion’s share of the market, cable Internet is faster,
has greater capability for speed and is more widely available. See Augustino, supra note 24, at
660; see also Grebb, supra note 129 (quoting the President and CEO of the National Cable
and Telecommunications Association for the proposition that cable Internet speeds could
reach 160 megabits per second in the next few years). In comparison to DSL, cable’s market
share continues to grow. See, e.g., FCC FOURTH REPORT, supra note 17, at 16 (showing that
cable’s share of broadband lines jumped from 44.1% in 1999 to 75.3% in 2003). But, with
98% of the broadband market between them, any competing high-speed Internet faces an
uphill battle in gaining a foothold in the market. See id. at 29 (noting the share of service lines
by providers other than cable and DSL, excluding wireless service, shrank from 27% to less
than 10% between 2001 and 2003); see also Augustino, supra note 24, at 668 (arguing that
there are high barriers to entry in the cable Internet market).
2006] BLOCKING ACCESS TO THE INTERNET 351
services’ highest speeds range between $30 and $100 per month.153 The
current market is so concentrated between cable and DSL that the lack of
competition has driven the high price.154 As a result, America is falling
behind other countries in making broadband available to its citizens.155 With
broadband already out of reach for so many, the FCC and the Supreme
Court’s rulings on cable Internet will make it increasingly difficult for
competitors to share existing lines and to offer a low-cost alternative to
153. See FCC FOURTH REPORT, supra note 17, at 14, 16 (noting that cable Internet
prices range from $35 to $80 per month, and DSL prices range from $35 to $100 per month);
supra note 29.
154. Mark Cooper notes that the Antitrust Division of the Department of Justice in
1982 “defined a market that has the equivalent of fewer than six equal-sized competitors as
‘highly concentrated.’” Cooper, supra note 15, at 1013. Arguing for open access to reduce the
market concentration, Cooper declares that where “information industries and networks [are
concerned], public policy should be particularly procompetitive and err toward requiring
more, not less, competition.” Id. at 1014. Concerning the lack of competition in the broadband
market, Goldfarb writes that “the mass market broadband market structure is characterized by
duopoly provision of broadband network services” by cable and DSL. Goldfarb, supra note
29, at 437. “All parties agree that the dynamics in both the network market and the
applications market would likely change if there were three or more network providers.” Id.
But see Crandall et al., supra note 14, at 526 (arguing the broadband market is competitive).
At this point, the U.S. broadband market is increasingly competitive, especially
with the rollout of wireless broadband. . . . [A]t least two companies provide high-
speed service in nearly 75% of all zip codes, and at least three companies provide
high-speed service in nearly 60% of zip codes.
155. The United States ranks eleventh in the world in broadband penetration. See FCC
FOURTH REPORT, supra note 17, at 5 (dissenting statement of Commissioner Michael J.
Copps). Copps lamented that the majority of FCC commissioners “somehow finds that this is
acceptable, and that our efforts are resulting in timely deployment.” Id. Comparing the United
States to other countries, Copps writes, “In Japan, for as little as $10, consumers get
broadband service at 8,000 [kilobits per second]. In Korea, consumers get 10,000 kbps for the
same price that we pay for 1,500 kbps.” Id.; see also id. at 7 (dissenting statement of
Commissioner Jonathan S. Adelstein) (“[T]he U.S. was recently ranked 11th in the world for
broadband penetration, and other sources suggest that we are trailing our closest competitors
among the industrialized nations.”). Crandall argues, however, that this is a result of heavy
promotion in other countries and lower population densities in the United States. See Crandall
et al., supra note 14, at 525-26. He notes, “Consumers cannot be forced to subscribe to
broadband if their tastes do not require higher-speed connections.” Id. at 526.
352 RUTGERS LAW JOURNAL [Vol. 38:321
V. A SOLUTION
Given the importance of broadband Internet and the probability that the
regulatory framework maintains a monopoly or a duopoly, finding an
affordable alternative to cable and DSL that will promote the government’s
goals of competition and universal access is vital.156 Several cities around the
country have gotten into the driver’s seat to bring affordable broadband
services to all.157 Numerous cities have taken steps to provide no- or low-
cost, high-speed wireless Internet to their residents, satisfying Congress’s
and the FCC’s goals of competition and access.158 Leading the charge is
Philadelphia, which will soon have its own wireless network available at
little or no cost to residents and businesses.159 Unfortunately, as more cities
are moving toward providing affordable broadband access to their residents,
state legislatures are buckling to pressure from lobbyists and are banning
municipalities from competing with incumbent ISPs.160
156. See supra Parts II.B, III.B, IV.
157. See Adam L. Penenberg, The Fight Over Wireless: Will We Get Internet Access
from Big Government or Big Business?, SLATE, Oct. 24, 2005, http://www.slate.com/id
/2128632 (noting that Chicago, Miami Beach, Milwaukee, Portland, and San Francisco are
“exploring” municipal wireless broadband access); Press Release, Camden County (N.J.),
Freeholders to Launch Countywide WiFi (Oct. 20, 2005), available at http://www.
camdencounty.com/happenings/press/wifi.html (announcing a multi-stage plan to provide
wireless broadband to the entire county).
158. See, e.g., Wireless Philadelphia Executive Committee, supra note 8 (noting that a
municipal wireless plan will help close the digital divide by making the Internet accessible to
159. See Michael Currie Schaffer, City: Wireless Internet Deal Signed, PHILA.
INQUIRER, Jan. 31, 2006, at B5 (announcing that Earthlink and Wireless Philadelphia had
reached an agreement to provide residents high-speed, wireless Internet access at less than $20
per month). Philadelphia is not using tax money to launch the network, further reducing the
cost to residents. Bob Tedeschi, E-Commerce Report, What Would Benjamin Franklin Say?
Philadelphia Plans Citywide Free Wi-Fi Internet Access for Computer Users, N.Y. TIMES,
Sept. 27, 2004, at C8.
160. See Penenberg, supra note 157 (“More than a dozen states have . . . statutes on
the books that make it difficult for government to get into the wireless broadband business.”).
With respect to Philadelphia’s attempt to provide broadband, Penenberg writes,
After Philly announced its intention to provide citywide wireless [in 2004], Verizon
spent more than $3 million to lobby the state government to pass a bill preventing
cities and townships in Pennsylvania from offering broadband or wireless services
unless the phone company has refused to do so.
Id.; see also Nixon v. Mo. Mun. League, 541 U.S. 125, 128-29 (2004) (holding that the
Telecommunications Act does not preempt a state law restricting the ability of municipalities
to offer telecommunications services).
2006] BLOCKING ACCESS TO THE INTERNET 353
Philadelphia recently began the introduction of no- and low-cost, high-
speed Internet citywide.161 Wireless Philadelphia, a city-sponsored non-profit
organization, and Earthlink, a private Internet provider, will deploy no- and
low-cost wireless broadband transmission throughout the city, offering the
service to competing ISPs at a wholesale rate of $9 per month and directly to
residents for approximately $20 per month.162 The city will also offer the
same service for $10 per month to those residents who qualify under
Philadelphia’s Digital Inclusion program.163 Free access will be available in
some city parks and public spaces.164
One of the major stated purposes of Philadelphia’s plan is to bridge the
digital divide.165 At $10 to $20 per month, the city will offer broadband
service for significantly less than local providers Comcast and Verizon,
which offer their services in Philadelphia for $43 to $58 and $30 to $38 per
month, respectively.166 Wireless Philadelphia has specifically taken note of
cable Internet and DSL prices in launching the wireless program, recognizing
161. Wireless Philadelphia—Make a Digital Difference [hereinafter Introducing
Wireless Philadelphia], http://www.wirelessphiladelphia.org/in_the_media.cfm/news/11.htm
(last visited Feb. 26, 2007). Within ninety days of city council approval of the attachment of
wireless Internet transmitters to light poles, the wireless system will be tested in a fifteen-
square-mile area of Northeast Philadelphia. Schaffer, supra note 159. If the test succeeds, it
will take another year for the entire 135-square-mile city to be blanketed with wireless
162. Schaffer, supra note 159.
163. Introducing Wireless Philadelphia, supra note 161. In addition, Wireless
Philadelphia is offering computer training and 10,000 free computers to city residents.
Deborah Yao, Associated Press, Philly, Earthlink Wi-Fi Deal to Pay for Computers, Training,
USATODAY.COM, Mar. 2, 2006, http://www.usatoday.com/tech/wireless/2006-03-02-phily-wi-
164. Introducing Wireless Philadelphia, supra note 161.
165. Wireless Philadelphia Executive Committee, supra note 8. With respect to the
digital divide, the executive committee argues that “[t]he potential of citywide wireless access
to reinforce educational programs from elementary school through university may be the
greatest long-term potential benefit to individual Philadelphians and to the collective health of
the city.” Id.; see supra Part II.B (discussing the digital divide). The committee has also noted
that the Internet is a valuable tool for tourists and businesses. Id.
166. See supra note 29. Philadelphia’s service will be one megabit per second, which
is slower than Comcast’s service, which exceeds six megabits per second, and Verizon’s
service, which goes up to three megabits per second. See State and Local Issues and
Municipal Networks: Hearing on S. 1294 Before the S. Comm. on Commerce, Science, and
Transportation, 109th Cong. 36 (2006) (statement of Donald B. Berryman, President,
Municipal Networks Division, Earthlink, Inc.); Comcast, Explore High-Speed Internet, supra
note 40; Verizon High Speed Internet, supra note 29.
354 RUTGERS LAW JOURNAL [Vol. 38:321
that those services are financially unfeasible for many city residents.167 By
offering the low-cost, high-speed wireless Internet, the city hopes to include
everyone in the benefits that the Internet brings.168
Given Congress’s and the FCC’s stated policy of making broadband
Internet competitive and generally available to the American public,169
Philadelphia’s program seems ideal.170 Despite the fact that nothing in the
Act prohibits municipalities from offering Internet service,171 after
167. See Wireless Philadelphia FAQs, http://www.wirelessphiladelphia.org/faqs.cfm
(last visited Feb. 26, 2007) (“For many families and businesses, DSL and Cable Internet
access are prohibitively expensive, in terms of both the monthly fee and the . . . cost
associated with ‘wiring’ a building. . . . Additionally, these providers do not offer outdoor
service, an increasingly sought-after feature.”); see also Tedeschi, supra note 159 (noting that
Philadelphia’s inexpensive wireless broadband program could aid 70% of the city’s students
who qualify for economic assistance).
168. Wireless Philadelphia Executive Committee, supra note 8. Wireless Philadelphia
A wireless city will be a strategic investment in the people of the city. It will provide
an infrastructure that can assist in bridging the digital divide that now exists and
prevents many individuals and families from obtaining the full measure of the
opportunities generated by the Internet because they can’t afford the cost of wired
broadband Internet access. This limits educational opportunities, job opportunities,
and participation in many dimensions of modern society. Eventually it results in
segments of the population forever lagging behind their peers. The potential of
citywide wireless access to reinforce educational programs from elementary school
through university may be the greatest long-term potential benefit to individual
Philadelphians and to the collective health of the city.
Id. (emphasis added); see also Penenberg, supra note 157 (noting that municipal wireless
would allow firefighters, police, and emergency responders to communicate better in
emergency or everyday occurrences).
169. 47 U.S.C. § 151 (2000) (creating the Federal Communications Commission “so
as to make available, so far as possible, to all the people of the United States, without
discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient,
Nation-wide, and world-wide wire and radio communication service with adequate facilities at
reasonable charges”); Telecommunications Act of 1996, Pub. L. No. 104-104, § 706(a), 110
Stat. 56, 153; FCC Strategic Goals: Broadband, supra note 10 (“All Americans should have
affordable access to robust and reliable broadband products and services.”).
170. See Nixon v. Mo. Mun. League, 541 U.S. 125, 142 (2004) (Stevens, J.,
dissenting) (noting that FCC commissioners believe that municipal participation in
telecommunications would further the Act’s goal of increased competition).
171. See 47 U.S.C. § 541(f) (stating that nothing in the act prevents a municipality
from providing cable television service and a municipal cable provider does not have to obtain
a franchise); U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 573 (D.C. Cir. 2004) (noting that
state regulators have historically set higher phone rates for business and urban customers to
help provide universal service to rural residents). But see Nixon, 541 U.S. at 135 (“There is . . .
2006] BLOCKING ACCESS TO THE INTERNET 355
Philadelphia announced that it would offer high-speed wireless Internet
access, Pennsylvania banned the practice.172 Pennsylvania’s law prohibits a
municipality from offering broadband Internet unless a telecommunications
company has refused to provide that service.173 Even though laws like
Pennsylvania’s remove a layer of competition and restrict the ability of low-
income people to access affordable broadband, several other states have also
no argument that the Telecommunications Act of 1996 is itself a source of federal authority
granting municipalities local power that state law does not.”).
172. See 66 PA. CONS. STAT. ANN. § 3014(h) (West Supp. 2006). The Pennsylvania
law prohibiting municipal wireless Internet service provides:
(h) Prohibition against political subdivision advanced and broadband services
(1) Except as otherwise provided for under paragraph (2), a political subdivision
or any entity established by a political subdivision may not provide to the public for
compensation any telecommunications services, including advanced and broadband
services, within the service territory of a local exchange telecommunications
company operating under a network modernization plan.
(2) A political subdivision may offer advanced or broadband services if the
political subdivision has submitted a written request for the deployment of such
service to the local exchange telecommunications company serving the area and,
within two months of receipt of the request, the local exchange telecommunications
company or one of its affiliates has not agreed to provide the data speeds requested. If
the local exchange telecommunications company or one of its affiliates agrees to
provide the data speeds requested, then it must do so within 14 months of receipt of
(3) The prohibition in paragraph (1) shall not be construed to preclude the
continued provision or offering of telecommunications services by a political
subdivision of the same type and scope as were being provided on the effective date
of this section.
Id. Following Philadelphia’s announced wireless network, Verizon spent $3 million lobbying
the state legislature to prevent municipal broadband and wireless networks. See Penenberg,
supra note 157 (“Verizon lobbyists helped draft Pennsylvania’s anti-wireless statute in 2004.
That law, in essence, gave Verizon veto power.”); see also Hugh Carter Donahue, Reining in
Municipal Wireless, Broadband: The Pennsylvania Story, TELECOM POL’Y REP., Dec. 15,
2004. Donahue writes:
Under the law, Pennsylvania cities and towns along with municipally owned utilities
will have a much tougher time offering telecommunications and broadband services
through high-speed fiber and broadband over powerlines. Except for municipal
telecommunications and broadband systems currently up and running, the law makes
it illegal for municipalities and municipally owned utilities to offer [such services]
unless and until their incumbent telco declines to match their proposed service
173. 66 PA. CONS. STAT. ANN. § 3014(h)(2).
356 RUTGERS LAW JOURNAL [Vol. 38:321
banned municipal wireless networks.174 The battle has reached Congress,
with competing bills alternatively restricting public bodies from offering
wireless broadband service and permitting it.175
The opposition to wireless municipal broadband plans like Philadelphia’s
is unfortunate because Philadelphia, which is exempt from the Pennsylvania
law,176 will inject competition into the broadband market and provide service
to people who have thus far been unable to afford broadband.177 While the
174. At least fifteen states “have adopted laws banning or limiting these municipal
networks.” Goldfarb, supra note 29, at 466; see, e.g., COLO. REV. STAT. § 29-27-103 (2005)
(restricting local governments from providing broadband service); LA. REV. STAT. ANN. §
45:844.50 (Supp. 2006) (requiring a local government to hold an election before offering
telecommunications or advanced services); NEV. REV. STAT. § 268.086(1), (4)(b) (2005)
(forbidding an incorporated city whose population is 25,000 or more from providing a
“telecommunications service,” and tying the term’s definition to 47 U.S.C. § 153(46)); UTAH
CODE ANN. § 10-18-201(1) (2004) (restricting a municipality from providing “a public
telecommunications service”); WIS. STAT. § 66.0422(2), (3d)(a) (Supp. 2005) (restricting a
municipality from offering broadband service unless it determines no other current provider
will provide the service within nine months). But see Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 999-1000 (2005) (upholding the FCC’s classification
of broadband Internet service as an information service, not a telecommunications service).
Some states have taken the opposite approach, allowing municipalities to offer broadband
service. See, e.g., WASH. REV. CODE § 54.16.330 (Supp. 2006) (permitting a municipality to
offer telecommunications services).
175. Compare Broadband Investment and Consumer Choice Act, S. 1504, 109th
Cong. § 15 (2005) (proposing restrictions on any state or local government competing with
private companies to provide “communications service”), and Preserving Innovation in
Telecom Act of 2005, H.R. 2726, 109th Cong. § 2 (2005) (prohibiting the provision of a
“telecommunications service” by a State or local government when a private entity offers “a
substantially similar service”), with Community Broadband Act of 2005, S. 1294, 109th Cong.
§ 2 (2005) (proposing amendment to the Telecommunications Act of 1996, which would
allow local government to provide broadband capability and services). Senator John Ensign,
who introduced the Broadband Investment and Consumer Choice Act, has received more than
$125,000 from telecommunications companies opposed to municipal broadband networks,
while Representative Pete Sessions, who introduced the similar House bill, holds between
$500,000 and $1 million in stock options from SBC, which has lobbied against such networks.
Penenberg, supra note 157.
176. Philadelphia is exempt from the law because it negotiated a deal with Verizon.
See Penenberg, supra note 157.
177. See Wireless Philadelphia FAQs, supra note 167 (noting that wireless is mobile
unlike cable and DSL and that it will allow people previously unable to afford broadband to
take advantage of the service); see also Crandall et al., supra note 14, at 531 (“[C]ompetition
between providers using their own, distinct infrastructure . . . is more likely to lead to
competition over more aspects of providers’ activities, bringing real choices for consumers,
downward pressure on costs and prices, and incentives for service innovation. Such
competition can drive investment, particularly for network upgrades required to provide
higher-speed broadband.” (internal quotation marks and citation omitted)).
2006] BLOCKING ACCESS TO THE INTERNET 357
FCC declares its intentions to provide universal broadband services,178 it has
done nothing to ensure broadband’s affordability.179 When cities like
Philadelphia move in to fill the gap left by FCC regulation, the groups that
benefit from those regulations try to block these no- and low-cost
alternatives.180 Providing more competition could lead incumbent providers
to offer more services to keep users from leaving for the lower-cost
municipal wireless.181 Allowing services like Philadelphia’s will also, at least
temporarily, avoid having to answer whether the regulatory framework for
cable Internet limits competition and effectively excludes low-income
The FCC and the Supreme Court’s classification of a cable Internet
service as an information service, permitting it to avoid common carrier
regulations, will make it harder for low-income people to access broadband
and for ISPs to compete. The classification of cable Internet as an
information service contravenes Congress’s goal that broadband be available
to all Americans. The current regulatory environment maintains a monopoly
or duopoly that keeps prices for high-speed Internet high and out of the reach
of many. While this Note asserts that classification is erroneous, it is not
likely to change because the FCC has taken action to restrict, instead of open,
178. See FCC POLICY STATEMENT, supra note 1, at 3.
179. See Goldfarb, supra note 29, at 398 (noting that if cable Internet had been
classified as a telecommunications service it would be subject to common carrier regulations
180. See Penenberg, supra note 157 (describing the lobbying efforts of a number of
181. See, e.g., Crandall et al., supra note 14, at 531 (noting that competition can
inspire providers to upgrade services). But see Nixon v. Mo. Mun. League, 541 U.S. 125, 132
(2004) (stating that allowing municipalities to enter the telecommunications market absent
state approval might not be “an effective way to draw municipalities into the business”).
182. Compare Frischmann, supra note 2, at 1021 (arguing for the use of certain
incentives to foster open, public access), with Thierer, supra note 62, at 288 (arguing that open
access could prevent infrastructure providers from “recoup[ing] their significant fixed costs of
doing business and [discourage them] from further innovating”). But cf. U.S. Telecom Ass’n
v. FCC, 359 F.3d 554, 582 (D.C. Cir. 2004) (agreeing with FCC conclusion that the failure to
enforce unbundling requirements (1) would not damage broadband competition and (2) would
foster investment incentives for incumbent local exchange carriers); U.S. Telecom Ass’n v.
FCC, 290 F.3d 415, 425 (D.C. Cir. 2002) (arguing that the disincentive effect of ordered DSL
unbundling of ISP and transmission services on the investment of local exchange carriers
should be taken into account for universal access).
358 RUTGERS LAW JOURNAL [Vol. 38:321
cable Internet services to competition. In order to allow more people to
access broadband, municipalities should follow Philadelphia’s model and
provide no- and low-cost access to residents. Municipal provision of high-
speed Internet fills the congressional mandate for broadband competition
while ensuring access to all, regardless of income. The Internet is too
important to be reserved for the exclusive use of those who can pay a
premium for it.