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Reality Check on Net Neutrality

What net neutrality is, and what it means for those who build first-mile fiber.   March 2006

Recent telco mergers, and recently proposed legislation that would explicitly allow network owners to add a surcharge for top-tier access to such services as Vonage VoIP and Google, have pushed the concept of net neutrality to the fore. A little history will explain what the concept really means, and what is at stake for the broadband industry.

I first heard of something called "network neutrality" during the FCC's review of AOL's acquisition of Time Warner Cable in 2000. At that time, "open access" was the hot topic in Washington and elsewhere – the idea that in order to preserve a competitive market for Internet access, applications and content, AOL Time Warner should be compelled to allow unaffiliated ISPs a non-discriminatory right to interconnect to Time Warner cable systems.

Read more... [Reality Check on Net Neutrality]

Negotiating an MDU Access Agreement

Owners have newfound leverage over competing providers, but mistakes are harder to fix  January 2006

It is difficult enough for communica¬tions professionals to keep up with the rapidly evolving technological and regulatory environments in which broadband providers operate. How is a residential property owner, manager, or developer going to do the same, while investing time and energy into retaining quality tenants?

Just a few years ago, this problem did not exist; because there was essentially no competition among providers. Each provider occupied a monopoly position in its discrete walled garden, and MDU owners simply signed whatever access agreement the telephone or cable tele¬vision provider offered. The alternative was no service at all, and a proliferation of little satellite dishes all over the property.

Read more... [Negotiating an MDU Access Agreement]

FTTH in Multi-Tenant Environments: Some Regulatory and Competitive Questions

Some Regulatory and Competitive Questions   December 2005

Over the last few years, the Federal Communications Commission has taken a number of affirmative steps to deregulate broadband services in order to free providers of legacy regulatory obligations. These deregulatory efforts are based on the assumption that incumbent owners of "last-mile" transmission facilities had both the ability and incentive to monopolize the services delivered over those facilities.

For example, in 2000, the FCC ruled that cable operators need not allow unaffiliated ISPs to connect to their local cable facilities to provide Internet access via cable modem to subscribers. In June of 2005, the United States Supreme Court endorsed this ruling. More recently, the FCC ruled that following a one-year transition period, incumbent local exchange carriers ("ILECs") will no longer be required to share with competitors the facilities used to provide xDSL service to millions of subscribers nationwide. By virtue of these rulings, neither cable operators nor ILECs will be treated as common carriers in the provision of broadband Internet connectivity. The FCC's policy of de-regulation is based on the assumption that with at least two wires leading to most homes, it no longer makes sense to consider last-mile broadband facilities a "bottleneck" preventing new entrants from reaching customers.

Read more... [FTTH in Multi-Tenant Environments: Some Regulatory and Competitive Questions]

Supreme Court Rules for Cable in Brand X Case

Cable operators do not have to allow space on their networks for competitors   August 2005

On June 27, the U.S. Supreme Court issued its long-awaited decision in National Cable & Telecommunications Ass'n v. Brand X Internet Servs., 125 S.Ct. 2688 (2005), upholding an FCC determination that cable modem service – broadband Internet connectivity provided directly to consumers over cable networks – is exclusively an "information service" and not a "telecommunications service" subject to common carrier regulation.

The Supreme Court's ruling focuses less on the substance of communications law than on administrative law, and its real significance is in upholding the FCC's authoritative role in interpreting laws within the agency's area of expertise. In that sense, the Brand X case will have profound consequences as national communications policies are formulated for the broadband era.

Read more... [Supreme Court Rules for Cable in Brand X Case]

The Case For Municipal FTTX

Avoiding franchise rules while preserving exclusivity in wired communities.   June 2005

In last month's issue, we presented "The Case for Municipal Broadband," outlining the rationales for municipal involvement in broadband generally and refuting the arguments used by cable and telephone company lobbyists against such involvement as the question is debated in state legislatures.

In this article, we assume that there is a sound rationale for municipal broadband generally, and we focus on why fiber optics is the optimal last-mile network solution for municipal broadband particularly. We refer to this solution as fiber-to-the-X, or "FTTx," to encompass a variety of fiber-based architectures including fiber-to-the-home, fiber-to-the-curb, fiber-to-the-premises, fiber-to-the-business, fiber-to-the-node, and so on.

Read more... [The Case For Municipal FTTX]

The Case For Municipal Broadband

The historical context, the law, the technology, and the future imperative.   May 2005

There are 2,007 municipalities in the United States that provide electric service to their residents. By 2004, at least 621 of these provided some sort of communications services to residents as well. This number represents a 37 percent increase in municipal communications since 2001. The number, of course, is expected to increase. Where economically feasible, municipal networks tend to use a fiber-to-the-premises (FTTP) or hybrid fiber/coax architecture to ensure sufficient capacity and versatility and to support next-generation high-bandwidth applications. Many municipal systems use a less expensive, easier to implement wireless architecture. Not surprisingly, the gathering momentum of public networking has generated a powerful backlash from private communications companies, which want to preserve dominance in the market.

Read more... [The Case For Municipal Broadband]

Who Owns the Inside Wiring?

Here's the latest on rights of operators and property owners on distribution.   March 2005

Federal and state courts over the past few years have issued several important decisions interpreting the FCC's rules governing the disposition of cable "inside wiring" for MDU buildings, The FCC rules are designed to allow MDU owners to gain control over existing inside wiring and to make it available for use by competing video providers.

The court decisions in question are generally favorable to MDU owners and to private cable operators (PCOs). We take this opportunity to summarize the most important points here. Although it is theoretically possible (albeit unlikely) that these decisions could be overturned, we are confident that as of the beginning of 2005, the following constitutes established law:

Read more... [Who Owns the Inside Wiring?]

FCC and Brand X Internet Services: Part Two

Should Data Over Cable And Data Over DSL Be Treated The Same?   February 2005

The Supreme Court agreed in December to consider whether cable companies must open their high-speed lines to rival Internet providers. Among the issues: Is cable wiring, used for non-cable services, a ''telecommunications service" that makes it subject to Federal Communications Commission rules requiring phone companies to provide access to independent providers or resellers? Last month, we provided a brief historical summary of the circumstances that have led to the FCC v. Brand X Internet Services case. In this article, we examine in more detail the legal issues involved in the case and attempt to assess the case's significance for the future of broadband services.

Read more... [FCC and Brand X Internet Services: Part Two]

FCC and Brand X Internet Services: Part One

The U.S. Supreme Court Takes on Broadband Cable Regulation.   January 2005

The Supreme Court agreed in December to consider whether cable companies must open their high-speed lines to rival Internet providers. Among the issues: Is cable wiring, used for non-cable services, a ''telecommunications service" that makes it subject to Federal Communications Commission rules requiring phone companies to provide access to independent providers or resellers? In this two-part series, former FCC attorney Carl Kandutsch explains what those folks in Washington are arguing about, and where the chips may fall. His goal is to explain the law (which is certainly still evolving) and the logic behind it.

Read more... [FCC and Brand X Internet Services: Part One]

A Legal Perspective On FCC Boosting Broadband

An understandable look at the legal issues that tie various FCC broadband decisions together.   December 2004

The Federal Communications Commission took several important steps in the past two years to loosen franchised cable's real or imminent dominance in the market for integrated broadband services (voice, video and data). The key, as always, is who controls, the "last mile" between digital networks and the customer premises.

The FCC's recent actions seek to enhance the potential of a relatively new network technology, fiber optics, to upset the cable/DSL duopoly in the delivery of broadband services over the last mile. This article briefly summarizes from a lawyer's point of view three recent FCC decisions relating to fiber optic networks and a related decision intended to expand the role of public utilities in the same markets. First, some background on the regulatory environment for last mile network technology.

Read more... [A Legal Perspective On FCC Boosting Broadband]
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In wake of the FCC’s Notice of Inquiry called Improving Competitive Broadband Access to Multiple Tenant Environments, competitive access to multi-tenant properties is again a burning public policy issue. We intend to summarize the controversy in a series of blog entries in the coming weeks.

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