10 - The Regulation of Last-Mile Broadband Networks

Summary

Telecommunications has moved from traditional analog voice service to high-speed digital transmission, referred to as broadband. The explosion of new forms of transmission and new types of content (data, audio, video), has changed the debate over access to networks. Under the general umbrella of “network neutrality,” advocates of mandatory access argue for extensive regulation of prices and products.

The Supreme Court's recent decision in National Cable & Telecommunications Association v. Brand X Internet Services cleared the way for the FCC to resolve how to fit the leading broadband technologies, such as cable modems and digital subscriber line (DSL) services, into the existing regulatory regime (545 U.S. 967 (2005)). The fact that Congress largely failed to take the Internet into consideration when enacting the Telecommunications Act of 1996 has left policymakers with little definitive guidance. Regulatory decisionmaking is further complicated by the dynamism of the technological environment. The demands that end users are placing on the Internet are changing rapidly, as evidenced by the increasing popularity of bandwidth-intensive applications, such as streaming media, peer-to-peer downloads, and virtual worlds. In the meantime, a host of new communications platforms are waiting in the wings, such as third-generation mobile communications devices (3G) and wireless hotspots employing WiFi technology.