{"id":1077,"date":"2005-07-07T09:11:14","date_gmt":"2005-07-07T09:11:14","guid":{"rendered":"https:\/\/discovery.org\/tech\/2005\/07\/07\/title_28\/"},"modified":"2025-06-27T21:19:17","modified_gmt":"2025-06-27T21:19:17","slug":"title_28","status":"publish","type":"post","link":"https:\/\/www.discovery.org\/tech\/2005\/07\/07\/title_28\/","title":{"rendered":"Brand X a mixed bag"},"content":{"rendered":"\n

Some have hailed last week\u2019s Supreme Court decision in NCTA v. Brand X Internet Services<\/a> as a triumph for deregulation, particularly in the wake of Chairman Kevin Martin\u2019s subsequent statements to the press that the FCC will move quickly to establish deregulatory parity between telephone and cable companies. That\u2019s extremely welcome news. But there\u2019s more here than meets the eye.<\/p>\n\n\n\n

The Court upheld<\/em> a regulatory regime in which DSL is subject to costly common carrier regulation and cable modems are not. The record showed that the decision to penalize one and reward the other is based on one set of considerations for the telephone companies (history of regulation, in effect) and another for the cable companies (contemporaneous market conditions). Arguments were made that the inconsistency is arbitrary and capricious, but the Court brushed them aside. Nor would the Court consider how the FCC should or lawfully may treat DSL.<\/p>\n\n\n\n

Cable modems have enjoyed a substantial lead in the marketplace vis-\ufffd-vis DSL since the FCC began keeping track in the late 1990s. Finally, three years ago the FCC issued a notice in which it tentatively concluded that DSL should be treated the same as cable modems. There is still no final decision, and nothing in last week\u2019s Supreme Court ruling forces the FCC to move.<\/p>\n\n\n\n

Discovery\u2019s John Wohlstetter observes<\/a> that if the decision had gone the other way the FCC would have been forced to do something, and that re-regulating cable would not have been an option. As it is, we shall have to see.<\/p>\n\n\n\n

The bottom line here is that the FCC is engaged in a form of \u201cindustrial policy\u201d \u2013 picking winners and losers \u2013 and last week\u2019s Supreme Court ruling highlights the limitations of judicial review.<\/p>\n","protected":false},"excerpt":{"rendered":"

Some have hailed last week\u2019s Supreme Court decision in NCTA v. Brand X Internet Services as a triumph for deregulation, particularly in the wake of Chairman Kevin Martin\u2019s subsequent statements to the press that the FCC will move quickly to establish deregulatory parity between telephone and cable companies. That\u2019s extremely welcome news. But there\u2019s more here than meets the eye. The Court upheld a regulatory regime in which DSL is subject to costly common carrier regulation and cable modems are not. The record showed that the decision to penalize one and reward the other is based on one set of considerations for the telephone companies (history of regulation, in effect) and another for the cable companies (contemporaneous market conditions). Arguments Read More ›<\/span><\/a><\/p>\n","protected":false},"author":219,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":""},"categories":[44],"tags":[],"coauthors":[112],"class_list":["post-1077","post","type-post","status-publish","format-standard","hentry","category-broadband"],"acf":[],"author_names":["Hance Haney"],"_links":{"self":[{"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/posts\/1077","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/users\/219"}],"replies":[{"embeddable":true,"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/comments?post=1077"}],"version-history":[{"count":0,"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/posts\/1077\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/media?parent=1077"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/categories?post=1077"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/tags?post=1077"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/coauthors?post=1077"}],"wp:action-assign-author":[{"href":"https:\/\/www.discovery.org\/tech\/wp-json\/wp\/v2\/post\/1077"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}