Welcome to Consumer Reports Advocacy

For 85 years CR has worked for laws and policies that put consumers first. Learn more about CR’s work with policymakers, companies, and consumers to help build a fair and just marketplace at TrustCR.org

Supreme Court grants cert in the Brand X case

Friday, Dec. 3, 2004
Mark Cooper, CFA (301) 807-1623
Susanna Montezemolo, CU, (202) 462-6262

Statement of Consumers Union and the Consumer Federation of America on the Supreme Court’s Decision to Grant Cert in the Brand X Case

The Supreme Court’s decision to grant cert in the Brand X case sets the stage to finally remove a barrier to competition and consumer choice on the high-speed Internet. For almost a decade the Federal Communications Commission (FCC) has ignored the Communications Act and allowed cable operators to force consumers to pay twice to choose their Internet Service Provider when accessing the high-speed Internet with cable modem service. We are confident that when the Court examines the facts, it will decide to uphold the 9th Circuit Appeals Court ruling that affirmed the critical principle of open, non-discriminatory networks as the cornerstone of competition in communications markets.
Consumers should be allowed to enjoy the increased choice and lower prices that come with a more competitive broadband market, as they do in the traditional “dial up” Internet market. We believe that the Supreme Court will uphold the 9th Circuit ruling, which ordered the FCC to remove this barrier to a competitive market, where consumers can select from a broad array of providers.
The original Brand X court finding, which was first entered four years ago, held that the advanced telecommunications network in the cable system should be available to Internet service providers on a non-discriminatory basis, leading the way to increased competition and the lower prices and greater choice that competition would bring. It rejected the FCC’s back-door, administrative repeal of sections 201 and 202 of The Telecommunications Act of 1996, which has allowed cable operators to gut any potential competition in the market by discriminating against Internet Service providers who want to compete in the cable modem market. The results of this closed U.S. policy is that the U.S. has fallen to fifteenth in the world in broadband adoption. U.S. consumers pay 30 times as much as the Japanese and 10 times as much as the Koreans do for high-speed Internet service.
The principles of non-discrimination in communications have been a cornerstone of our democracy and dynamic economy since the founding of our republic. Indeed, it is a fundamental part of common law that reaches back to the earliest days of capitalism. We are confident that the Supreme Court will uphold the principle, as the 9th Circuit Court of Appeals has done twice, and put an end to the legal gymnastics at the FCC that has denied consumers choice and slowed the spread of broadband.