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Internet Decision Major Victory for Consumers

Tuesday, April 1, 2004
Chris Murray, CU, 202-462-6262
Mark Cooper, CFA, 301-384-2204

Brand X Decision A Major Consumer Victory
Open Access For Competitive Internet Service Providers Now the Law of the Land

(Washington DC) The decision by the Ninth Circuit Court of Appeals to deny the petition of the Federal Communications Commission for a rehearing in the Brand-X (Brand X v. Federal Communications Commission 02-70518, et. al.) case is good news for consumers, the Internet and the economy.
Gene Kimmelman, advocacy director for Consumers Union, said, “This means that consumers should now be able to select from a broad array of high-speed Internet service providers over cable systems, just as they can today for dial-up Internet services. Those alternatives mean consumers will get more choices and potentially a whole new array of customized Internet features and lower prices for Internet connectivity.”
Kimmelman continued: “It is time for the FCC to deliver a truly competitive high-speed Internet market for consumers by implementing this court decision. Unfortunately the agency has done the exact opposite in the past and we fear they will attempt to drag out this legal dispute even longer, to the benefit of cable monopolies.”
Mark Cooper, director of research for the Consumer Federation of America said, “The cable industry’s unwillingness to provide independent broadband providers access to their customers, hiding behind the FCC’s regulatory approach, has undermined high-speed Internet service competition and innovation for broadband applications.”
“The FCC should accept the court’s finding, which was first entered almost four years ago, that the advanced telecommunications network operated by cable operators should be available to Internet service providers on a non-discriminatory basis.”
The court has eloquently stated the principle that the FCC has refused to accept – to continue the competitive, innovative success story that is the Internet requires an open communications network:
Among its broad reforms, the Telecommunications Act of 1996 enacted a competitive principle embodied by the dual duties of nondiscrimination and interconnection.… Together, these provisions mandate a network architecture that prioritizes consumer choice, demonstrated by vigorous competition among telecommunications carriers… Under the Communications Act, this principle of telecommunications common carriage governs cable broadband as it does other means of Internet transmission such as telephone service and DSL, “regardless of the facilities used.” The Internet’s protocols themselves manifest a related principle called “end-to-end”: control lies at the ends of the network where the users are, leaving a simple network that is neutral with respect to the data it transmits… On this role of the Internet, the codes of the legislator and the programmer agree. [From AT&T v. City of Portland, 216 F.3d 871 (9th Cir. 2000)]
“It is time for the FCC to obey the law and restore the vibrant environment for innovation and freedom of consumer choice on broadband that made the narrowband Internet such a dynamic engine of creativity and expression,” Cooper said. “And it’s obvious that in light of this ruling, the FCC cannot peruse the illegal course it has outlined for DSL service in ongoing wireline proceeding.”