ACSBlog: The Blog of the American Constitution Society

This past Tuesday, the U.S. Court of Appeals for the Third Circuit held that a Federal Communications Commission decision deregulating the market for high-speed internet access was entitled to deference. The case, Time Warner Telecom Inc. v. FCC, concerned a September 2005 rule promulgated by the FCC that eliminated longstanding requirements for internet service providers to grant competitors nondiscriminatory access to their wirelines.

Writing for a unanimous panel that included visiting Judge Alan D. Lourie of the Federal Circuit, U.S. Circuit Judge Julio M. Fuentes noted a 2005 Supreme Court ruling upholding the FCC's classification of cable companies as providing an "information" rather than a "telecommunications" service, and concluded that "the record adequately supports the FCC's conclusion that, from the perspective of the end-user, wireline broadband service and cable modem service are functionally similar and, therefore, that they should be subject to the same regulatory classification."

Independent service providers unsuccessfully argued that the agency's rule permits telephone companies to deny competitors access to their wirelines, and that such a result would lead to decreased competition and consumer choice.