The Authority to Regulate Broadband Internet Access Over Cable

Abstract

What, in the eyes of the law, is cable broadband? The regulation of cable-based platforms for high-speed Internet access has become one of the most controversial subjects in communications law. A trilogy of judicial decisions on the statutory status of cable broadband forced the Federal Communications Commission to confront this question. High-speed Internet access over cable is neither a "cable service" nor a "telecommunications service" under the Communications Act, but rather an "information service." From a statutory patchwork including the Clayton Act, the "advanced telecommunications capability" provision of the Telecommunications Act of 1996, and longstanding grants of rulemaking authority, the Commission may require operators of cable broadband facilities to offer their customers a choice of Internet service providers. This Article concludes that the Commission should exercise its power to impose open access requirements for cable broadband.

Keywords: Federal Communications Commission, Communications Act, Clayton Act, Telecommunications Act of 1996, cable broadband, high-speed Internet

JEL Classification: K23