Order Code RL32985
CRS Report for Congress
.Received through the CRS Web
Defining Cable Broadband Internet Access
Service: Background and Analysis of the
Supreme Court’s Brand X Decision
July 7, 2005
Angie A. Welborn
Legislative Attorney
American Law Division
Charles B. Goldfarb
Specialist in Industrial Organization and Telecommunications Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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Defining Cable Broadband Internet Access Service:
Background and Analysis of the Supreme Court’s
Brand X Decision
Summary
In 2002, the Federal Communications Commission (FCC) issued a
Declaratory Ruling and Notice of Proposed Rulemaking regarding the provision of
Internet services over cable connections to address the legal status of such services
under the Communications Act of 1934, as amended. In the Declaratory Ruling, the
Commission determined 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.” By classifying cable
modem service as an information service and not a telecommunications service or a
hybrid information and telecommunications service, the Commission precluded the
mandatory application of the requirements imposed on common carriers under Title
II of the Communications Act, thus allowing the provision of such services to
develop with relatively few regulatory requirements.
There were numerous challenges to the FCC’s classification of cable modem
service as an information service, which were consolidated, and by judicial lottery
assigned to the Ninth Circuit for review. The Ninth Circuit, applying its own
interpretation of the act, vacated the FCC’s ruling regarding the classification of
cable modem service as an information service. On appeal, the Supreme Court
overturned the Ninth Circuit’s decision, finding that the FCC’s interpretation of the
act was “reasonable” in light of the statute’s ambiguity. The Court’s decision revives
the FCC’s classification of cable modem service as an “information service” and
refocuses attention on several important issues regarding the regulation of broadband
services that Congress is likely to consider in its reexamination of the
Telecommunications Act of 1996.
This report provides an overview of the regulatory actions leading up to and
an analysis of the Supreme Court’s decision in National Cable &
Telecommunications Association v. Brand X Internet Services. It also provides a
discussion of the possible legal and economic implications of the Court’s decision.
The report will be updated as events warrant.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FCC’s Regulatory Authority under the Communications Act . . . . . . . . . . 1
FCC’s Declaratory Ruling and Rulemaking . . . . . . . . . . . . . . . . . . . . . . . 1
Ninth Circuit’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Supreme Court’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Legal Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Implications for Competition Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Cable Internet Access: Background and
Analysis of the Brand X Case
Background
FCC’s Regulatory Authority under the Communications Act
Title I of the Communications Act states that the act “applies to all interstate
and foreign communications by wire or radio,”1 and the legislative history of the act
indicates that the FCC has “regulatory power over all forms of electrical
communication,” even those not explicitly mentioned in the act.2 Title I confers
upon the Commission the authority to promulgate regulations “reasonably ancillary
to the effective performance of the Commission’s various responsibilities” outlined
elsewhere in the act.3
In contrast to Title I, Title II of the Communications Act, imposes certain
specific requirements on common carriers in their provision of telecommunications
services. Generally, Title II requires common carriers to provide service “upon
reasonable request therefor,” and at a “just and reasonable” rate.4 Under Title II,
common carriers are also required to provide services without “unjust or
unreasonable discrimination in charges, practices, classifications, regulations,
facilities, or services.”5 In addition, the act requires certain carriers to provide
potential competitors with access to their network.6 Entities regulated under Title II
may also be subject to additional requirements governing universal service support,
the provision of disability access, public safety, consumer protection, and law
enforcement access.
FCC’s Declaratory Ruling and Rulemaking
In 2002, the Federal Communications Commission issued a Declaratory
Ruling and Notice of Proposed Rulemaking regarding the provision of Internet
1 47 U.S.C. 152(a).
2 S. Rep. No. 73-781, at 1 (1934). See also United States v. Southwestern Cable Co., 392
U.S. 157 (1968).
3 Southwestern Cable at 178.
4 47 U.S.C. 201.
5 47 U.S.C. 202.
6 47 U.S.C. 251(a) (establishing general duties of common carriers) and 251(c)(2) and (3)
(relating to duties of incumbent local exchange carriers). See also 47 U.S.C. 201(a)
(requiring nondiscriminatory access).

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CRS-2
services over cable connections to address the legal status of such services under the
Communications Act of 1934, as amended.7 In the Declaratory Ruling, the
Commission determined 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.”8 By classifying cable
modem service as an information service and not a telecommunications service or a
composite service that combines an information service and a telecommunications
service, the Commission precluded the mandatory application of the requirements
imposed on common carriers under Title II of the Communications Act, thus
allowing the provision of such services to develop with relatively few regulatory
requirements.
In making the determination that cable modem services are information
services and not telecommunications services, the Commission first looked to the
relevant statutory definitions of each as established by the Telecommunications Act
of 1996.9 In enacting the Telecommunications Act of 1996, Congress codified a
definitional distinction between “telecommunications” (and “telecommunications
service”) and “information service.” “Telecommunications” is defined under the act
as 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 or received.”10 “Information service”, on the other hand, is defined as the
“offering of a capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing or making available information via telecommunications.”11
Noting that the statutory definitions are based on the functions that are made
available with the service rather than the facilities used to provide the service, the
Commission then examined the functions that cable modem service makes available
to its end users.12
Citing its determination in an earlier proceeding that Internet access service
in general should be classified as an information service, the Commission found that
since cable modem service is “an offering of Internet access service,” it must also be
an information service.13 The Commission stated that “cable modem service is a
single, integrated service that enables the subscriber to utilize Internet access service
7 In the Matter of Inquiry Concerning High-Speed Access to the Internet Over Cable and
Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Cable Facilities, 17 FCC Rcd. 4798
(March 15, 2002).
8 17 FCC Rcd. 4798, 4799.
9 17 FCC Rcd. at 4820.
10 47 U.S.C. 153(43). “Telecommunications service” is the “offering of telecommunications
for a fee directly to the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used.” 47 U.S.C. § 153(46).
11 47 U.S.C. 153(20)(emphasis added).
12 17 FCC Rcd. at 4821.
13 Id at 4822. See also In the Matter of Federal-State Joint Board on Universal Service, 13
FCC Rcd. 11501 (April 10, 1998).

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CRS-3
through a cable provider’s facilities and to realize the benefits of a comprehensive
service offering.”14 The Commission rejected the notion that cable modem service
included an “offering of telecommunications service to a subscriber,” conceding that
while the service was provided “via telecommunications,” the telecommunications
component was not “separable from the data-processing capabilities of the service.”15
Ninth Circuit’s Decision
The Ninth Circuit determined that the question before it was whether its prior
interpretation of the Telecommunications Act controlled review of the Commission’s
decision regarding the classification of cable modem service.16 Three years prior, in
AT&T v. City of Portland, a three judge panel of the Ninth Circuit determined that
cable modem service was not a cable service, but was both an information and a
telecommunications service.17 In the Brand X case, the court held that it was bound
to follow its own precedent regarding the classification of cable modem service
rather than apply the two-part test set forth by the Supreme Court in Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc. for reviewing an agency’s
interpretation of a statute it is charged with administering.18 Thus, the court in the
Brand X case vacated the part of the Commission’s Declaratory Ruling regarding the
classification of cable modem service as an information service.19
Supreme Court’s Decision
The Court began its decision with the conclusion that Chevron’s framework
should be used to evaluate the Commission’s interpretation of the statute and that the
Ninth Circuit should have also applied Chevron, rather than following its own
construction of the statute in the Portland case.20 In Chevron, the Court held that
“ambiguities in statutes within an agency’s jurisdiction to administer are delegations
of authority to the agency to fill the statutory gap in a reasonable fashion.”21 If the
Court determines that the statute is ambiguous and the agency’s interpretation of the
statute is reasonable, “Chevron requires a federal court to accept the agency’s
14 Id.
15 Id. at 4823.
16 Brand X Internet Services v. Federal Communications Commission, 345 F.3d 1120 (9th
Cir. 2003).
17 216 F.3d 871 (9th Cir. 2000).
18 345 F.3d 1120, 1132. See discussion of Supreme Court’s decision in Brand X infra
regarding the two-part test established in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984).
19 Id.
20 Slip Op. at 8.
21 Id, citing Chevron, 467 U.S. at 865-866.

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construction of the statute, even if the agency’s reading differs from what the court
believes is the best statutory interpretation.”22
The Ninth Circuit’s decision not to apply Chevron in favor of the “conflicting
construction of the [Communications] Act it had adopted in Portland” was based on
an “incorrect” assumption.23 According to the Supreme Court, the Ninth Circuit
incorrectly assumed that its construction “overrode the Commission’s regardless of
whether Portland had held the statute to be unambiguous.”24 However, the Supreme
Court noted that “[a] court’s prior judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if the prior court decision
holds that its construction follows from the unambiguous terms of the statute and
thus leaves no room for agency discretion.”25
After determining that the Ninth Circuit erred in applying its own
construction of the act, the Court moved to its Chevron analysis.26 As to the statute’s
ambiguity, the Court first looked to the definitions of “telecommunications service”
and “telecommunications” in the Telecommunications Act of 1996.27 The Court
determined that while “cable companies in the broadband Internet service business
‘offe[r]’ consumers an information service in the form of Internet access and they do
so ‘via telecommunications,’” it does not “inexorably follow as a matter of ordinary
language that they also ‘offe[r]’ consumers the high-speed data transmission
(telecommunications) that is an input used to provide this service.”28 Restating the
principle established in Chevron, the Court stated that “where a statute’s plain terms
admit of two or more reasonable ordinary usages, the Commission’s choice of one
of them is entitled to deference,” and concluded that the use of the term “offer” in the
definition of “telecommunications service” was ambiguous in such a way as to admit
two or more reasonable ordinary usages.29
After determining that the statute was ambiguous as to the classification of
cable modem service, the Court then applied the second step of the Chevron analysis
22 Id, citing Chevron at 843-844.
23 Slip Op. at 10.
24 Id.
25 Id.
26 Slip Op. at 14.
27 Slip Op. at 16. See n.12, supra.
28 Slip Op. at 17.
29 Slip Op. at 17 - 18. With respect to the ambiguity of the term “offer,” the Court went on
to say:
Because the term “offer” can sometimes refer to a single, finished product and
sometimes to the “individual components in a package being offered” (depending
on whether the components “still possess sufficient identity to be described as
separate objects”), the statute fails unambiguously to classify the
telecommunications component of cable modem service as a distinct offering.
This leaves federal telecommunications policy in this technical and complex area
to be set by the Commission, not by warring analogies. Slip Op. at 20.

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to determine whether the Commission’s interpretation was “a reasonable policy
choice for the Commission to make.”30 The respondents in the case argued that the
Commission’s construction was unreasonable because “it allows any
communications provider to ‘evade’ common-carrier regulation [under Title II] by
the expedient of bundling information service with telecommunications.”31 The
Court rejected this argument, stating that it did not “believe that these results follow
from the construction the Commission adopted.”32 The Court went on to articulate
its interpretation of the Commission’s construction:
As we understand the Declaratory Ruling, the Commission did not say that
any telecommunications service that is priced or bundled with an
information service is automatically unregulated under Title II. The
Commission said that a telecommunications input used to provide an
information service that is not “separable from the data-processing
capabilities of the service” and is instead “part and parcel of [the
information service] and is integral to [the information service’s] other
capabilities” is not a telecommunications offering.33
The Court also rejected the respondent’s argument that cable modem service
provided simply the ability to transmit information. In so doing, the Court noted that
the Internet access provided by the cable modem service allowed consumers to have
access to DNS service (allowing them to reach third-party websites), the World
Wide Web, electronic mail, remote terminal access, and file transfer capabilities,
which effectively provides the “capability for . . . acquiring, storing . . . retrieving and
utilizing . . . information” inherent in the definition of an information service.34 The
Court therefore concluded that the Commission’s construction was reasonable.35
The Court also rejected respondent MCI, Inc.’s argument that the
Commission’s treatment of cable modem service is inconsistent with its treatment
of DSL service, and is therefore “an arbitrary and capricious deviation from agency
policy in violation of the Administrative Procedures Act.36 The Court concluded that
the Commission provided a “reasoned explanation for treating cable modem service
differently from DSL service,” and that “the Commission is free within the limits of
reasoned interpretation to change course if it adequately justifies the change.”37
30 Slip Op. at 25, citing 467 U.S. at 845.
31 Id.
32 Slip Op. at 26.
33 Slip Op. at 26, citing Declaratory Ruling, supra note 7.
34 Slip Op. at 28, quoting 47 U.S.C. 153(20).
35 Slip Op. at 29.
36 Slip Op. at 20. See 5 U.S.C. 706(2)(A).
37 Id.

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Legal Implications
The Court’s reversal of the Ninth Circuit’s decision effectively revives the
Commission’s Declaratory Ruling classifying cable modem service as an
information service. As such, cable operators providing broadband internet access
are currently not subject to the myriad of regulatory requirements mandated under
title II of the act. Most notably, providers of cable modem services are not obligated
to provide unaffiliated internet service providers access to their broadband platforms.
In addition, providers of cable modem services remain free, at this point, from
provisions governing discrimination in the provision of services; universal service
support; assistance to law enforcement in the interception of communications made
over the network; network accessibility to individuals with disabilities; and the
protection of subscriber information.
Moreover, the Commission’s classification of cable modem service as an
information service appears to limit the scope of state and local regulatory authority
over such services. Regulatory requirements and fees imposed on cable operators by
localities pursuant to the franchising authority conferred under title VI of the act are
apparently applicable only to the provision of “cable services.”38 Classification of
cable modem service as an “information service” appears to preclude the imposition
of such requirements on cable operators’ broadband internet offerings.39
The question remains however, whether the FCC can and will impose certain
regulatory requirements on the provision of cable modem service pursuant to its
authority under title I of the act. In Brand X, the Court expressly acknowledged the
existence of such authority and the possibility that the Commission might “impose
special regulatory duties on facilities-based ISP’s under its Title I ancillary
jurisdiction.” The FCC is currently examining whether and which of such duties
should be imposed as part of two proceedings pending before it.40
Implications for Competition Policy
Since the Brand X decision upholds the FCC’s classification of cable modem
service as an information service, subject to relatively few regulatory requirements,
it does not change the status quo. It is likely, however, to spur follow-on FCC
activity on the classification of DSL service and also may affect the current debate
about modifying the Communications Act.
38 See e.g. 47 U.S.C. § 542 (limiting application of franchise fees to a percentage of revenue
derived from the provision of “cable services.”).
39 See 47 U.S.C. § 544(b)(prohibiting local franchising authority, in its request for franchises
and franchise renewal proposals, from establishing requirements for “video programming
or other information services.”).
40 See 17 FCC Rcd at 4839-4840; see also Matter of Appropriate Framework for
Broadband Access to the Internet over Wireline Facilities, 17 FCC Rcd 3019 (Notice of
Proposed Rulemaking examining, in part, the Universal Service obligations of broadband
providers).

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DSL service currently is treated as having a telecommunications service
component and therefore is subject to the access and other requirements in Title II of
the act. The FCC, however, already has tentatively concluded that DSL-based
Internet access service is an information service.41 When the Brand X decision was
announced, FCC Chairman Kevin Martin issued a press release stating: “This
decision provides much-needed regulatory clarity and a framework for broadband
that can be applied to all providers. We can now move forward quickly to finalize
regulations that will spur the deployment of broadband services for all Americans.”
Similarly, Commissioner Kathleen Abernathy stated: “Now that the Court has
resolved lingering uncertainty regarding the regulatory treatment of cable-based
Internet access services, I am hopeful that the Commission will act quickly to
establish a similarly forward-looking approach for competitive wireline xDSL
services.” Industry observers expect Chairman Martin to seek expeditious
Commission action to rule that DSL-based Internet access services also are
information services. Observers expect that even if the other commissioners have
some concerns about a relaxed regulatory regime, those concerns might be
outweighed by the desire to provide regulatory neutrality between cable modem and
DSL service.
But there continues to be a policy debate about the best regulatory framework
for fostering investment and innovation in both the physical broadband network and
in the applications (services) that ride over that network. The physical network
providers (local exchange carriers and cable system operators) argue that they will
be discouraged from undertaking costly and risky broadband network build-outs and
upgrades if their networks are subject to open access and/or non-discrimination
requirements that might limit their ability to exploit vertical integration efficiencies
or to maximize the return on (or even fully recoup) their investments. On the other
hand, the independent applications providers argue that in order for them to best meet
the needs of end-users and offer innovative services in competition with the vertically
integrated network providers — and, in some cases, services not offered at all by
network providers — they must have the same unfettered open access to the physical
networks that the network providers enjoy or, at the least, be protected by non-
discrimination rules. Similarly, many end-users argue that their broadband network
providers should not be allowed to restrict their usage of the broadband network as
long as they do not in any way compromise the integrity of the network.
There are four general approaches to the regulation of broadband network
providers vis-a-vis independent applications providers: structural regulation, such as
open access; ex ante non-discrimination rules; ex-post adjudication of abuses of
market position, as they arise, on a case-by-case basis; and non-mandatory principles
as the basis for self regulation. Open access generally refers to a structural
requirement that would prevent a broadband network provider from bundling
broadband service with Internet access from its own in-house ISP. The basic
principle behind a network non-discrimination regime is to give users the right to use
non-harmful attachments or applications, and give innovators the corresponding
41 Appropriate Framework for Broadband Access to the Internet over Wireline Facilities,
Universal Service Obligations of Broadband Providers, Notice of Proposed Rulemaking,
17 FCC Rcd 3028 and 3030.

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freedom to supply them — so long as the integrity of the network is not affected. Ex
post adjudication of abuses of market position would place the burden of proof on
a complainant that any restrictions imposed by a broadband provider on access to its
network is harmful to consumers. Non-mandatory principles, such as the Four
Internet Freedoms articulated by former-FCC chairman Michael Powell,42 would
leave access relationships entirely to the market place, on the assumption that it is
platform providers’ own self interest to minimize restrictions. Some observers have
suggested that the appropriate level of regulation on broadband network providers
may depend upon whether a viable third broadband platform option — most likely
wireless — becomes available to independent applications providers and end-users.43
42 These are Freedom to Access Content, Freedom to Use Applications, Freedom to Attach
Personal Devices, and Freedom to Obtain Service Plan Information. See Remarks of
Michael K. Powell, Chairman, Federal Communications Commission, at the Silicon
Flatirons Symposium on “The Digital Broadband Migration: Toward a Regulatory Regime
for the Internet Age,” University of Colorado School of Law, February 8, 2004.
43 See, e.g., Christine Vestal, “Wireless Is Key to Post-Brand X Broadband Competition,
FCC Staffers Say,” Communications Daily, June 30, 2005, at pp. 2-4; Dinesh Kumar,
“Utilities Set to Benefit from Brand X Ruling, BPL Officials Say,” Communications Daily,
June 30, 2005, at pp. 5-6.

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