Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | GN Docket No. 00-185         |
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| Inquiry Concerning High-Speed    | ** | CS Docket No. 02-52          |
| Access to the Internet Over      |    |                              |
| Cable and Other Facilities       | *  |                              |
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| Internet Over Cable Declaratory  | ** |                              |
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| for Broadband Access to the      | ** |                              |
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**DECLARATORY RULING**

**AND**

**NOTICE OF PROPOSED RULEMAKING**

**Adopted: March 14, 2002 Released: March 15, 2002**

**Comment Date:** 60 days after publication of this Notice in the
Federal Register

**Reply Comment Date:** 90 days after publication of this Notice in the
Federal Register

By the Commission: Chairman Powell and Commissioner Abernathy issuing
separate statements;

> Commissioner Copps dissenting and issuing a statement.

**TABLE OF CONTENTS**

Paragraph

I. introduction 1

II\. BACKGROUND 9

III\. declaratory ruling: statutory classification of cable modem
service 31

A. Background 31

B. \"Information Service\" or \"Telecommunications Service\"
Classification 34

C. "Cable Service" Classification 60

D. Other Statutory Classifications 70

IV\. NOTICE OF PROPOSED RULEMAKING 72

A. Background 72

B. Commission Authority 75

C. Marketplace Developments 83

D. Consequences Of Legal Classification As Information Service 96

1\. State and Local Regulation of Cable Modem Service and Rights-Of-Way.
96

2\. Pole Attachments 109

3\. Universal Service 110

4\. Protection of Subscriber Privacy 111

V. ADMINISTRATIVE MATTERs 113

VI\. ordering clauses 133

# introduction

1.  Cable modem service provides high-speed access to the Internet,[^1]
    as well as many applications or functions that can be used with that
    access, over cable system facilities.[^2] The service is available
    to approximately 73% of U.S. households.[^3] Along with the
    service's popularity, controversy has grown about its legal status
    under the Communications Act of 1934, as amended ("the Act"),[^4]
    and about what regulatory treatment (if any) is appropriate under
    the law and will best serve consumers. The purpose of this
    proceeding is to resolve these issues.[^5]

2.  The issue of what, if any, regulatory treatment should be applied to
    cable modem service dates back to at least 1998, when it arose in
    the Commission's "First Section 706 Inquiry" about the deployment of
    advanced telecommunications capability.[^6] The Commission further
    considered the issue in several subsequent proceedings including a
    complaint case,[^7] license transfer reviews in connection with
    mergers involving cable operators,[^8] and a special report by the
    Commission's Cable Services Bureau.[^9] To date, however, the
    Commission has declined to determine a regulatory classification
    for, or to regulate, cable modem service on an industry-wide
    basis.[^10]

3.  Following the Second 706 Inquiry, the Commission concluded that it
    should address the regulatory classification of cable modem service
    and released the Notice of Inquiry ("Notice") in this
    proceeding.[^11] We have since received over 250 filings, and
    Commission staff have met with a variety of industry
    representatives, consumer advocates, and state and local government
    officials.

4.  In considering the issues before us we are guided by several
    overarching principles. First, consistent with statutory mandates,
    the Commission's primary policy goal is to "encourage the ubiquitous
    availability of broadband to all Americans."[^12] Section 706 of the
    Telecommunications Act of 1996 ("1996 Act")[^13] charges the
    Commission with "encourag\[ing\] the deployment on a reasonable and
    timely basis of advanced telecommunications capability to all
    Americans" by "regulatory forbearance, measures that promote
    competition . . . , or other regulating methods that remove barriers
    to infrastructure investment."[^14] Moreover, consistent with
    section 230(b)(2) of the Act, we seek "to preserve the vibrant and
    competitive free market that presently exists for the Internet and
    other interactive computer services, unfettered by Federal or State
    regulation."[^15]

5.  Second, we believe "broadband services should exist in a minimal
    regulatory environment that promotes investment and innovation in a
    competitive market."[^16] In this regard, we seek to remove
    regulatory uncertainty that in itself may discourage investment and
    innovation. And we consider how best to limit unnecessary and unduly
    burdensome regulatory costs.

6.  Third, in this proceeding, as well as in a related proceeding
    concerning broadband access to the Internet over domestic wireline
    facilities,[^17] we seek to create a rational framework for the
    regulation of competing services that are provided via different
    technologies and network architectures. We recognize that
    residential high-speed access to the Internet is evolving over
    multiple electronic platforms, including wireline, cable,
    terrestrial wireless and satellite. By promoting development and
    deployment of multiple platforms, we promote competition in the
    provision of broadband capabilities, ensuring that public demands
    and needs can be met. We strive to develop an analytical approach
    that is, to the extent possible, consistent across multiple
    platforms.

7.  For the reasons discussed below, we conclude 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. In
    addition, we initiate a rulemaking proceeding to determine the scope
    of the Commission's jurisdiction to regulate cable modem service and
    whether (and, if so, how) cable modem service should be regulated
    under the law, in light of the principles discussed above.

8.  We seek comment on the regulatory implications of our finding that
    cable modem service is an information service, including, among
    other things, the extent to which state and local authorities may
    regulate the service. We are initiating a further proceeding in
    order to obtain additional comment on specific issues and to ensure
    that any action we take reflects the continuing evolution of cable
    modem service and the business of residential high-speed Internet
    access service.

# BACKGROUND

9.  *Deployment*. As of September 2001, 50.5% of U.S. households had
    Internet connections.[^18] The vast majority of them subscribe to
    "narrowband" service provided over local telephone facilities.[^19]
    Residential high-speed, or "broadband,"[^20] Internet access service
    became available after narrowband Internet access service had
    achieved widespread popularity.[^21] Residential high-speed Internet
    access services are provided primarily over coaxial cable wires in
    the form of cable modem service offered by cable operators, and over
    copper wires in the form of digital subscriber line ("DSL") services
    offered by local exchange carriers ("LECs").[^22] The services are
    also provided to some extent over terrestrial wireless radio
    spectrum by mobile and fixed wireless providers and over satellite
    radio spectrum by satellite providers.[^23] Industry analysts
    estimate that high-speed Internet access service is now available to
    approximately 75-80% of all the homes in the United States via DSL
    or cable modem service, and approximately 11% of all households
    subscribe to these services today.[^24] While there are several
    types of high-speed access (DSL, cable, satellite, fixed wireless),
    not every home has access to every type of service.[^25] Throughout
    the brief history of the residential broadband business, cable modem
    service has been the most widely subscribed to technology, with
    industry analysts estimating that approximately 68% of residential
    broadband subscribers today use cable modem service.[^26] Analysts
    estimate that about 29% of residential broadband subscribers use DSL
    service,[^27] and about 3% of subscribers use various radio-based
    technologies.[^28] In the past year, some incumbent LECs have scaled
    back their DSL deployment plans; cable's lead over DSL has grown;
    and several incumbent LECs and cable operators have raised their
    prices for high-speed Internet access services.[^29]

10. *Features and Applications.* Cable modem service typically includes
    many and sometimes all of the functions made available through
    dial-up Internet access service,[^30] including content,[^31] e-mail
    accounts,[^32] access to news groups,[^33] the ability to create a
    personal web page,[^34] and the ability to retrieve information from
    the Internet, including access to the World Wide Web.[^35] Because
    of the broadband capability of the cable plant, however, cable modem
    service subscribers can access the Internet at speeds[^36] that are
    significantly faster than telephone dial-up service.[^37] As a
    result of that faster access, subscribers can often send and view
    content with much less transmission delay than would be possible
    with dial-up access, utilize more sophisticated "real-time"
    applications,[^38] and view streaming video[^39] content at a higher
    resolution and on a larger portion of their screens than is
    available via narrowband.[^40] Some cable operators also provide
    subscribers with access to content that the operators have created
    or aggregated on an Intranet specifically for the benefit of their
    subscribers.[^41] For example, cable operators sometimes provide
    content targeted to a specific locality, much as cable operators do
    in their video service offerings.[^42]

11. Cable operators often include in their cable modem service offerings
    all of the services typically provided by Internet access
    providers,[^43] so that subscribers usually do not need to contract
    separately with another Internet access provider to obtain discrete
    services or applications, such as an e-mail account or connectivity
    to the Internet, including access to the World Wide Web.[^44]
    Subscribers typically have "click-through" access to any and all
    content and services available on the Internet.[^45] That is, a
    subscriber can access the service or content of his choice by typing
    in the Uniform Resource Locator ("URL")[^46] of, or clicking on a
    hyperlink to, the desired service or content, using the web browser
    chosen by the subscriber or included with the subscriber's cable
    modem service. Accessing the services or content of entities not
    affiliated with the cable operator, such as those provided by an
    unaffiliated Internet service provider ("ISP"), however, may require
    the subscriber to pay those entities an additional fee over and
    above the monthly subscription charge for cable modem service.[^47]

12. *Network Architecture and Technology.* Cable systems were originally
    built to provide video programming in one direction, from the
    network to subscribers.[^48] These systems were designed to send the
    same content, a package of video channels, in an analog signal
    format to all subscribers uniformly. Cable operators have had to
    invest in major improvements or system upgrades to provide cable
    modem service.[^49] The typical upgrade employs what is commonly
    known as a hybrid fiber-coaxial ("HFC") architecture.[^50] The HFC
    architecture generally converts the typical cable tree-and-branch
    infrastructure to a ring or star-type infrastructure and increases
    the reliability and the overall bandwidth available for cable modem
    service, video programming, and other services.[^51] Typically in an
    HFC-upgraded system, fiber optic cables are laid from the headend to
    neighborhood nodes.[^52] Coaxial cables extend from the nodes to
    each subscriber's home. Cable operators allocate a portion of their
    system's spectrum (*i.e.*, bandwidth or channel capacity) for
    upstream and downstream data transmissions necessary for cable modem
    service.[^53] At each subscriber's home, a splitter and a high-speed
    cable modem are installed. The splitter separates signals and sends
    them to different cables going to the subscriber's television and
    computer. The cable that goes to the computer connects with a
    high-speed cable modem and an Ethernet or Universal Serial Bus
    ("USB") interface that are attached to the computer. This modem and
    interface enable the cable system to communicate with the
    subscriber's computer, and vice versa.[^54]

13. Cable modem service requires special equipment at the headend and in
    other parts of the cable system. Often located at the headend is a
    Cable Modem Termination System ("CMTS"), which manages the flow of
    data between cable subscribers and the Internet and other
    equipment.[^55] The CMTS enables the enhanced two-way capabilities
    essential for cable modem service.[^56] File servers for data
    storage within the cable system and other types of Internet-related
    servers, switches, and high‑speed routers that manage data flow on
    the Internet are often located at regional data centers.[^57]

14. In addition to the network improvements just described, a cable
    operator must establish a connection to the Internet in order to
    provide cable modem service.[^58] Depending on network topologies
    and business arrangements between the cable operator and other
    entities, Internet connectivity to the cable plant can be
    accomplished by various methods, as discussed below in relation to
    business models. In one scenario, the cable operator provides the
    Internet connectivity, either by itself or in conjunction with a
    single affiliated or unaffiliated ISP. In a second scenario, the
    cable operator may offer more than one brand of cable modem service,
    in effect giving subscribers a choice of various ISPs. In this
    model, an unaffiliated ISP delivers its content and services over
    the cable system to subscribers through one of two different
    methods: (1) via the cable operator's (or affiliated ISP's) own
    Internet transport (backbone) arrangements, commonly referred to as
    "transit"; or (2) via a direct interconnection agreement between the
    cable operator (or affiliated ISP) and the unaffiliated ISP.[^59]

15. This second method of achieving Internet connectivity in a
    multiple-ISP environment may require the deployment of certain
    additional facilities and systems depending upon the chosen
    technological solution, such as the installation of new routers that
    perform source-based routing[^60] or destination-based routing[^61]
    to allow the cable operator to selectively redirect data packets to
    each ISP, and sufficient operations support systems ("OSS")[^62] to
    properly maintain billing and other essential operational functions.
    Routing techniques, such as source-based routing, may be difficult
    for cable operators to manage and integrate and may present problems
    with regard to scalability, *i.e.,* the numbers of ISPs and
    subscribers that can be served.[^63] Cable operators may also face
    other technical challenges in a multiple-ISP environment, such as
    bandwidth management, subscriber IP address assignment management,
    and network security.[^64] Multiple-ISP access is occurring in the
    marketplace and in trials however, using various routing
    techniques.[^65]

16. Cable modem service typically requires the performance of a number
    of specific functions. Cable operators may self-provide all of these
    functions, or they may contract with affiliated or unaffiliated ISPs
    to provide some or all of them.[^66] The functions can be
    categorized as Internet connectivity, enhanced applications,
    operations, and customer service.[^67]

17. Internet connectivity functions enable cable modem service
    subscribers to transmit data communications to and from the rest of
    the Internet.[^68] At the most basic level, these functions
    include[^69] establishing a physical connection between the cable
    system and the Internet[^70] by operating or interconnecting with
    Internet backbone facilities.[^71] In addition, these functions may
    include protocol conversion,[^72] IP address number assignment,[^73]
    domain name resolution through a domain name system (DNS),[^74]
    network security,[^75] and caching.[^76] Network monitoring,
    capacity engineering and management,[^77] fault management,[^78] and
    troubleshooting[^79] are Internet access service functions that are
    generally performed at an ISP or cable operator's Network Operations
    Center (NOC)[^80] or back office and serve to provide a steady and
    accurate flow of information between the cable system to which the
    subscriber is connected and the Internet.[^81]

18. Complementing the Internet access functions are Internet
    applications provided through cable modem service. These
    applications include traditional ISP services such as e-mail, access
    to online newsgroups, and creating or obtaining and aggregating
    content.[^82] The cable modem service provider will also typically
    offer subscribers a "first screen" or "home page"[^83] and the
    ability to create a personal web page.[^84]

19. Finally, the cable modem service provider must provide practical
    operational and customer service functions in order for subscribers
    to utilize the service. The subscriber must have a computer system
    and a working cable modem connected via an Ethernet or USB interface
    to establish cable modem service.[^85] As a result, the cable modem
    service provider may offer the installation of hardware and software
    in the subscriber's computer, any wiring of the subscriber's
    premises that may be necessary, and simple and complex customer
    service, as well as technical support.[^86] The cable modem service
    provider must also develop and implement OSS in order to properly
    bill, provision, and manage the accounts of its subscribers.[^87]
    Finally, cable modem service providers must provide for the sales
    and marketing of the service to solicit and obtain new
    customers.[^88]

20. *Business Models.* Cable operators offer cable modem service to
    their customers using a variety of business models, many of which
    are currently under transition. Some operators self-provide, while
    others provide service in conjunction with affiliated or
    unaffiliated entities. Some operators have chosen to employ the same
    model throughout all of their systems nationally, while others have
    chosen to utilize different models in different locales. Currently,
    however, most MSOs only offer one brand of cable modem service on
    any given cable system.[^89]

21. Historically, most operators have self-provided cable modem service
    or have provided the service in conjunction with one of several ISPs
    specifically created and owned by the cable operators themselves.
    These affiliated entities provided many of the functions of cable
    modem service. Excite@Home, for example, was founded by a consortium
    of cable operators (including TCI, Cox, and Comcast) to provide
    comprehensive networking and systems integration services to support
    cable modem service.[^90] Excite@Home filed for Chapter 11
    bankruptcy protection in September 2001 and ceased operations
    entirely on February 28, 2002.[^91] Prior to its demise, however, it
    provided service to many financially affiliated and unaffiliated
    cable operators. Affiliated entities included AT&T (formerly TCI),
    Comcast, Cox, and Cablevision.[^92] Unaffiliated cable operators
    that formed cooperative agreements with Excite@Home included
    Charter, Adelphia, Insight, Cogeco, MidContinent, Videon, and
    MediaCom.[^93] Another ISP, Road Runner, was also created by cable
    operators to provide many of the functions of cable modem service.
    Originally formed by Time Warner Cable, Road Runner later became a
    partnership between Time Warner and MediaOne.[^94] Road Runner
    provided cable modem service to both operators exclusively.[^95]
    High-Speed Access Corp., while created independently, was
    subsequently acquired in part, by Vulcan Ventures, the parent
    company of cable operator Charter Communications.[^96] Historically,
    High Speed Access Corp. contracted with Charter Communications and
    several smaller operators to provide "turn key" services, which
    entailed not only Internet connectivity and services such as e-mail
    and web-hosting, but also equipment, network management, and in some
    cases billing and customer service functions.[^97] In 2001, however,
    High Speed Access Corp. filed for bankruptcy and sold substantially
    all of its assets to Charter Communications, choosing to exit all of
    its turn key contracts with cable operators other than Charter.[^98]

22. Excite@Home and Road Runner employed similar business and technical
    models. Both ISPs obtained exclusive contracts with the cable
    operators they served.[^99] Both ISPs operated regional networks and
    provided operators with connections from the cable headend to the
    Internet, as well as content, e-mail, and web-hosting, and varying
    levels of network management, provisioning, and customer
    service.[^100] <Excite@Home> also operated its own Internet backbone
    facilities.[^101] In exchange for these services, cable operators
    typically paid <Excite@Home> or Road Runner a share of subscriber
    revenues.[^102] Cable operators then combined these services of
    <Excite@Home> or Road Runner with certain other functions that they
    typically self-provided, including, in some cases, owning and
    operating the CMTS, cable modem rental, customer service
    administration, and cable modem installation.[^103] The integrated
    service provided by these operators was co-branded. For example, Cox
    provided service under the brand Cox@Home, while Comcast provided
    service under the brand Comcast@Home, and Cablevision has provided
    service to a limited number of customers under the brand
    Optimum@Home.[^104] AT&T has provided service under the brands
    AT&T@Home and AT&T Road Runner.[^105]

23. Although many cable operators have traditionally entered into
    cooperative agreements with Excite@Home or Road Runner to provide
    cable modem service, some operators have chosen from the start to
    self-provide all of the functions included in their cable modem
    service offering on some, if not all, of their systems. For example,
    Cablevision has long provided cable modem service primarily through
    its self-branded, self-operated, Optimum Online service.[^106] Cox
    and Adelphia have also provided self-branded, self-operated cable
    modem service in some of their systems, branded as Cox Express and
    Adelphia Powerlink, respectively.[^107]

24. Finally, several operators have provided cable modem service in
    conjunction with ISPs not financially affiliated with any cable
    operator. Some of the smaller cable operators, for example, have
    historically contracted with independent ISPs, such as The ISP
    Channel, to obtain turn key service,[^108] which entailed not only
    Internet connectivity and services such as e-mail and web-hosting,
    but also equipment, network management, and in some cases billing
    and customer service functions that larger operators normally have
    self-provided.[^109] The ISP Channel and High Speed Access Corp.,
    however, no longer provide turn key services, and the number of turn
    key providers is dwindling.[^110] Cable operators using independent
    ISPs to provide cable modem service have chosen in many cases to
    re-brand the service as their own or to co-brand the service.
    Charter Communications, for example, has contracted with EarthLink
    in several markets to provide cable modem service, and then
    rebranded the service as Charter Pipeline.[^111]

25. It bears repeating that cable modem service subscribers, by
    "click-through" access, may obtain many functions from companies
    with whom the cable operator has not even a contractual
    relationship.[^112] For example, a subscriber to Comcast's cable
    modem service may bypass that company's web browser, proprietary
    content, and e-mail. The subscriber is free to download and use
    instead, for example, a web browser from Netscape,[^113] content
    from Fox News,[^114] and e-mail in the form of Microsoft\'s
    "Hotmail."[^115] Whether the subscriber chooses to utilize functions
    offered by his cable modem service provider or obtain them from
    another source, these functions currently are all included in the
    standard cable modem service offering.

26. Many of the business models described above are currently under
    transition, due to several noteworthy events. First, AOL Time
    Warner, Comcast, and AT&T have all embarked on a multiple-ISP
    approach to offering cable-modem service. Time Warner began offering
    a choice of provider after Road Runner's exclusivity with Time
    Warner was terminated on December 31, 2000 in conjunction with its
    merger with AOL, and in accordance with conditions imposed on the
    merger by the FTC.[^116] As of January 2002 AOL Time Warner was
    offering cable modem service using both affiliated and unaffiliated
    ISPs on all systems in its 20 largest divisions with a choice of
    three national ISP services.[^117] In March, AOL Time Warner added
    four more markets.[^118] On February 26, 2002, Comcast announced
    that it had negotiated an agreement to offer United Online's NetZero
    and Juno high-speed Internet services to Comcast customers in two
    major metropolitan areas, within 90 days of the agreement.[^119] On
    March 12, 2002, AT&T announced an agreement to offer EarthLink
    high-speed cable Internet service to its consumers in the greater
    Boston and Seattle markets.[^120]

27. Second, as noted above, in September 2001, Excite@Home filed for
    Chapter 11 bankruptcy protection, and was forced to liquidate its
    assets to pay its creditors.[^121] As a result many of the nation's
    largest cable operators, including AT&T, Cox, Comcast, Insight and
    Charter were forced either to self-provide all of the functions
    necessary to offer cable modem service in the regions in which they
    had used [Excite@Home,](mailto:Excite@Home) or to adopt alternative
    business and technical models.[^122] As a result of the termination
    of its relationship with Excite@Home, for example, AT&T constructed
    a new network to enable it to self-provide cable modem service to
    subscribers.[^123]

28. Finally, other MSOs, have been conducting or have announced that
    they will conduct technical trials to determine how cable modem
    service can be offered using multiple ISPs, as AOL Time Warner is
    now doing, and AT&T and Comcast propose they will do. Cox and
    Charter both announced technical trials of multiple ISP service.
    While Cox began a technical trial of multiple ISP-service with AOL
    and EarthLink in the third quarter of 2001, Charter has since
    decided not to pursue a multiple ISP trial.[^124]

29. As discussed above, the multiple-ISP environment requires a
    re-thinking of many technical, operational, and financial issues,
    including implementation of routing techniques to accommodate
    multiple ISPs,[^125] Quality of Service,[^126] and the compensation,
    billing, and customer service arrangements between the cable
    operator and the ISPs.[^127] While much more could be said regarding
    these issues, it is clear that they center around the difficulties
    of trying to modify a service designed to be provisioned by a single
    cable modem service provider to allow the provisioning of cable
    modem service by multiple service providers.

30. *Conclusion.* As the foregoing description makes clear, the business
    relationships among cable operators and ISPs and their offerings to
    consumers are still evolving through negotiations and commercial
    decisions. Customers, for their part, are still learning the
    capabilities of cable modem service and deciding which applications
    they prefer. As we address the issues raised in this proceeding, we
    are mindful that the broadband market in general and cable modem
    services in particular are still evolving and that regulatory
    decisions will affect their development. We anticipate that further
    developments in this market will inform our consideration of the
    issues presented in the Notice of Proposed Rulemaking that we are
    initiating herein.

# declaratory ruling: statutory classification of cable modem service 

## Background

31. In the Notice, we raised questions about the appropriate legal and
    policy framework for cable modem service.[^128] Cable modem service,
    for purposes of this proceeding, is a service that uses cable system
    facilities to provide residential subscribers with high-speed
    Internet access, as well as many applications or functions that can
    be used with high-speed Internet access.[^129] Parties advocate
    several different legal classifications for cable modem service,
    including \"cable service,\"[^130] \"information service,\"[^131]
    both cable service and information service,[^132] a combination of
    "telecommunications service"[^133] and information service,[^134]
    and "advanced telecommunications capability.\"[^135] In advocating
    their positions, the parties rely to varying degrees on statutory
    definitions, on the components and functions that make up cable
    modem service, on the fundamental policies stated in the Act, and on
    past Commission decisions.

32. The Communications Act does not clearly indicate how cable modem
    service should be classified or regulated; the relevant statutory
    provisions do not yield easy or obvious answers to the questions at
    hand; and the case law interpreting those provisions is extensive
    and complex. The technologies and business models used to provide
    cable modem service are also complex and are still evolving. As the
    Supreme Court recently observed in connection with the Commission's
    interpretation of the Pole Attachment Act and its application to
    cable modem service, "the subject matter here is technical, complex,
    and dynamic; and, as a general rule, agencies have authority to fill
    gaps where statutes are silent."[^136]

33. In accordance with that responsibility, we herein address the
    classification of cable modem service for purposes of the Act. Our
    analysis begins, as always, with the language of the statute. We
    then consider the factual record in this proceeding, and
    particularly the descriptions by cable operators and others of how
    cable modem service is provided today and what functions it makes
    available to subscribers and to ISPs. We conclude that cable modem
    service as currently provided is an interstate information service,
    not a cable service, and that there is no separate
    telecommunications service offering to subscribers or ISPs.

## \"Information Service\" or \"Telecommunications Service\" Classification

34. Because the classification of cable modem service turns on statutory
    interpretation, we begin with a review of relevant statutory
    definitions. The 1996 Act defines "telecommunications service" as
    "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."[^137]
    "Telecommunications" is defined in turn 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 and received."[^138] The Act defines
    "information service" as "the offering of a capability for
    generating, acquiring, storing, transforming, processing,
    retrieving, utilizing, or making available information via
    telecommunications, and includes electronic publishing, but does not
    include any use of any such capability for the management, control,
    or operation of a telecommunications system or the management of a
    telecommunications service."[^139]

35. None of the foregoing statutory definitions rests on the particular
    types of facilities used. Rather, each rests on the function that is
    made available.[^140] Accordingly, we examine below the functions
    that cable modem service makes available to its end users. The
    Commission's prior analysis regarding Internet access service
    informs our analysis.

36. In the *Universal Service Report*, the Commission found that
    Internet access service is appropriately classified as an
    information service, because the provider offers a single,
    integrated service, Internet access, to the subscriber. The service
    combines computer processing, information provision, and computer
    interactivity with data transport, enabling end users to run a
    variety of applications.[^141] In the *Universal Service Report*,
    the Commission concluded that "Internet access providers do not
    offer subscribers separate services -- electronic mail, Web
    browsing, and others -- that should be deemed to have separate legal
    status."[^142] Rather, the Commission examined specific uses of
    Internet access in order "to understand the nature of the
    functionality that an Internet access provider offers."[^143]

37. The *Universal Service Report* provides several specific examples of
    functions that Internet access service providers typically include
    in their service, including e-mail, newsgroups, and the ability to
    create a web page that is accessible by other Internet users.[^144]
    In addition, Internet Access service generally includes using the
    DNS.[^145] The DNS is an online data retrieval and directory
    service. The DNS is a distributed system, where the data may be
    replicated in multiple, geographically dispersed server systems. The
    administration of the DNS is hierarchical, and is routinely
    delegated among a great many independent organizations. It is most
    commonly used to provide an IP address associated with the domain
    name (such as [www.fcc.gov](http://www.fcc.gov/)) of a computer;
    however, the DNS is also routinely used to perform reverse
    address-to-name lookups[^146] and to identify and locate e-mail
    servers.[^147] In addition, the DNS is flexible and can be enhanced,
    so that it is capable of supporting new functionality.[^148] The DNS
    constitutes a general purpose information processing and retrieval
    capability that facilitates the use of the Internet in many ways.

38. E-mail, newsgroups, the ability for the user to create a web page
    that is accessible by other Internet users, and the DNS are
    applications that are commonly associated with Internet access
    service.[^149] Each of these applications encompasses the capability
    for "generating, acquiring, storing, transforming, processing,
    retrieving, utilizing, or making available information via
    telecommunications."[^150] Taken together, they constitute an
    information service, as defined in the Act. Consistent with the
    analysis in the *Universal Service Report*, we conclude that the
    classification of cable modem service turns on the nature of the
    functions that the end user is offered. We find that cable modem
    service is an offering of Internet access service, which combines
    the transmission of data with computer processing, information
    provision, and computer interactivity, enabling end users to run a
    variety of applications.[^151] As currently provisioned, cable modem
    service supports such functions as e-mail, newsgroups, maintenance
    of the user's World Wide Web presence, and the DNS.[^152]
    Accordingly, we find that cable modem service, an Internet access
    service, is an information service. This is so regardless of whether
    subscribers use all of the functions provided as part of the
    service, such as e-mail or web-hosting,[^153] and regardless of
    whether every cable modem service provider offers each function that
    could be included in the service. As currently provisioned, cable
    modem service is a single, integrated service that enables the
    subscriber to utilize Internet access service through a cable
    provider's facilities and to realize the benefits of a comprehensive
    service offering.

39. Cable modem service is not itself and does not include an offering
    of telecommunications service to subscribers. We disagree with
    commenters that urge us to find a telecommunications service
    inherent in the provision of cable modem service.[^154] Consistent
    with the statutory definition of information service, cable modem
    service provides the capabilities described above "via
    telecommunications."[^155] That telecommunications component is not,
    however, separable from the data-processing capabilities of the
    service. As provided to the end user the telecommunications is part
    and parcel of cable modem service and is integral to its other
    capabilities.[^156]

40. As stated above, the Act distinguishes \"telecommunications\" from
    \"telecommunications service.\" The Commission has previously
    recognized that \"\[a\]ll information services require the use of
    telecommunications to connect customers to the computers or other
    processors that are capable of generating, storing, or manipulating
    information.\"[^157] Although the transmission of information to and
    from these computers may constitute \"telecommunications,\" that
    transmission is not necessarily a separate \"telecommunications
    service.\"[^158] We are not aware of any cable modem service
    provider that has made a stand-alone offering of transmission for a
    fee directly to the public, or to such classes of users as to be
    effectively available directly to the public.[^159] Further, as we
    discuss below, there is no Commission requirement that such an
    offering be made.

41. In the *Universal Service Report*, the Commission concluded that the
    Act's "information service" and "telecommunications service"
    definitions establish mutually exclusive categories of service:
    "when an entity offers transmission incorporating the 'capability
    for generating, acquiring, storing, transforming, processing,
    retrieving, utilizing, or making available information,' . . . it
    offers an 'information service' even though it uses
    telecommunications to do so."[^160] The report did not decide the
    statutory classification issue in those cases where an ISP provides
    an information service over its own transmission facilities. The
    *Universal Service Report* noted that "\[o\]ne could argue that in
    such a case the Internet service provider is furnishing raw
    transmission capacity to itself."[^161] In the case of cable modem
    service, we do not believe that the fact that cable modem service is
    provided over the cable operator's own facilities, without more,
    necessarily creates a telecommunications service separate and apart
    from the cable modem service. The cable operator providing cable
    modem service over its own facilities, as described in the record,
    is not offering telecommunications service to the end user, but
    rather is merely using telecommunications to provide end users with
    cable modem service.[^162] Our analysis, like the relevant statutory
    definitions, focuses instead on the single, integrated information
    service that the subscriber to cable modem service receives and the
    nature of the relationships among cable operators and the entities
    with which they cooperate to provide cable modem service, which is
    discussed further below.

42. *Computer II Requirements.* EarthLink argues that it is irrelevant
    whether cable operators in fact offer transmission service on a
    stand-alone basis.[^163] Instead, EarthLink contends that cable
    modem service providers must create a stand-alone transmission
    service and offer it to ISPs and other information service providers
    on a tariffed basis pursuant to the Commission's *Computer II*
    requirements.[^164] EarthLink maintains *Computer II* applies to
    cable modem service because cable operators offer it on an
    indiscriminate and standardized basis to the public and because they
    do so using their own facilities.[^165] According to EarthLink,
    "\[t\]he reality is that information services can only be provided
    to the public over a common carrier telecommunications
    facility."[^166] In support of its arguments, EarthLink points to a
    line of decisions in which the Commission has required common
    carriers that provide information services to offer the underlying
    telecommunications as a stand-alone service.[^167]

43. These decisions are inapposite. In the cases relied upon by
    EarthLink and others, the providers of the information services in
    question were traditional wireline common carriers providing
    telecommunications services (*e.g.*, telephony) separate from their
    provision of information services.[^168] *Computer II* required
    those common carriers also to offer on a stand-alone basis the
    transport underlying that information service. The Commission has
    never before applied *Computer II* to information services provided
    over cable facilities. Indeed, for more than twenty years, *Computer
    II* obligations have been applied exclusively to traditional
    wireline services and facilities.[^169] We decline to extend
    *Computer II* here. As we have found above, cable modem service
    providers currently offer subscribers an integrated combination of
    transmission and the other components of cable modem service.[^170]
    EarthLink invites us, in essence, to find a telecommunications
    service inside every information service, extract it, and make it a
    stand-alone offering to be regulated under Title II of the Act. Such
    radical surgery is not required.

44. EarthLink further contends that the fact that some cable operators
    offer local exchange service as competitive LECs in some markets
    "using the same cable facilities that are at issue in this
    proceeding" establishes that these cable operators are common
    carriers and therefore must abide by the requirements of *Computer
    II* with respect to their offerings of cable modem service.[^171]
    EarthLink asserts that *Computer II* would require any cable
    operator providing telephone service to unbundle the underlying
    transmission capacity of its cable modem service and make it
    available to other information service providers. We disagree. As
    the Commission recently observed, "the core assumption underlying
    the *Computer Inquiries* was that the *telephone network* is the
    primary, if not exclusive, means through which information service
    providers can gain access to their customers."[^172] The *Computer
    II* and *Computer III* proceedings thus subjected AT&T and GTE, and
    later the Bell Operating Companies, to certain safeguards and
    conditions, and imposed an unbundling obligation on other telephone
    companies. The Commission recently noted that "the obligations
    deriving from \[the *Computer II* and *Computer III*\] proceedings
    currently apply to the provision of wireline broadband Internet
    access services by facilities-based telephone companies.[^173] As
    noted above, the Commission has applied these obligations only to
    traditional wireline services and facilities, and has never applied
    them to information services provided over cable facilities.

45. Even if *Computer II* were to apply, however, we waive on our own
    motion the requirements of *Computer II* in situations where the
    cable operator additionally offers local exchange service. The
    Commission, on its own motion or on petition, may exercise its
    discretion to waive such requirements on the basis of good cause
    shown and where the particular facts would make strict compliance
    inconsistent with the public interest.[^174] A waiver, therefore,
    may be appropriate if special circumstances warrant a deviation from
    the general rule, and if such deviation would better serve the
    public interest than adherence to the general rule.[^175]

46. If we were to require cable operators to unbundle cable modem
    service merely because they also provide cable telephony service, we
    would in essence create an open access regime for cable Internet
    service applicable only to some operators. We believe it is more
    appropriate to examine the issue of open access on a national basis
    involving all those Title VI cable systems that choose to offer
    cable modem service, rather than to divide and treat separately
    those that also have a common carrier local telephony offering.

47. Also, we believe that many, if not most, such cable operators would
    stop offering telephony if such an offering triggered a multiple ISP
    access obligation for the cable modem service.[^176] Because many
    cable operators would likely withdraw from the telephony market,
    applying *Computer II* in such circumstances would undermine the
    long-delayed hope of creating facilities based competition in the
    telephony marketplace and thereby seriously undermine the goal of
    the 1996 Act to open all telecommunications markets to
    competition.[^177] It would also disserve the goal of Section 706
    that we "encourage the deployment on a reasonable and timely basis
    of advanced telecommunications capability to all Americans . . . by
    utilizing . . . measures that promote competition in the local
    telecommunications market, or other regulating methods that remove
    barriers to infrastructure investment."[^178] In light of the above,
    we believe that if *Computer II* were applicable, strict compliance
    here would be inconsistent with the public interest. Because we
    believe that good cause is shown to deviate from the general
    requirements of *Computer II*, we decline to apply *Computer II* in
    the manner that EarthLink proposes.[^179]

48. *Cable Operators' Relationships With ISPs -- Self-Provisioning and
    Input Models.* We have concluded above that cable modem service does
    not include a stand-alone offering of telecommunications service to
    subscribers. Significantly, cable modem service as currently
    provided also does not include an offering of telecommunications
    service to ISPs or other information service providers. As discussed
    above, cable modem service is provided based on a wide variety of
    arrangements, some of which involve contractual relationships among
    cable operators and ISPs or other information service
    providers.[^180] Based on the record before us, none of these
    arrangements appears to involve the offering of telecommunications
    to ISPs or other information service providers on a common carrier
    basis.

49. With the exception of AOL Time Warner, most cable operators
    currently provide only one brand of cable modem service on any
    system.[^181] Among these cable operators, two models prevail; we
    refer to them here as the self-provisioning model and the input
    model. Some cable operators self-provide all of the functions that
    comprise the cable modem service offering.[^182] AT&T, Comcast, and
    Cox, for example, have self-provided cable modem service on all of
    their systems since the demise of Excite@Home.[^183] Others, such as
    Cablevision, have self-provided the functions of cable modem service
    since the service was first offered to subscribers.[^184] In
    contrast, other cable operators contract with an ISP, which may or
    may not be affiliated with the cable operator, to provide many of
    the inputs needed to create the cable modem service offering.[^185]

50. Many of the large cable operators initially offered cable modem
    service using inputs provided by Excite@Home and Road Runner.[^186]
    AOL Time Warner has used and still uses this type of input
    arrangement to provide cable modem service using inputs supplied by
    its affiliate Road Runner.[^187] Some small operators also typically
    use input arrangements, usually in conjunction with unaffiliated
    ISPs or information service providers.[^188] ISPs and other
    information service providers typically supply various types of
    inputs to cable operators that use this model. Excite@Home and HSA,
    for example, provided e-mail, caching, web-hosting, and other
    functions included in cable operators' cable modem service
    offerings.[^189] ISPs also have provided cable operators with
    connectivity between the cable system and the Internet
    backbone.[^190] Due to the demise of Excite@Home and HSA, some cable
    operators have reduced their reliance on input providers for this
    and other functions. Charter, for example, has recently begun
    self-provisioning connectivity between its systems and the Internet
    backbone, while continuing to rely on various input providers to
    supply functions such as e-mail, web-hosting, and a welcome
    page.[^191]

51. None of the foregoing business models by which cable operators
    provide cable modem service appears to include the offering of any
    transmission service by a cable operator to an ISP or other
    information service provider.[^192] This is necessarily true for
    cable operators that self-provision all elements of cable modem
    service and therefore have no arrangements with ISPs. It also
    appears true for cable operators that provide cable modem service
    using input arrangements. In both the self-provisioned model and the
    input model, the cable operator is offering cable modem service to
    its retail subscribers. Even where an unaffiliated ISP provides most
    of the information service functions described above, as described
    in the record, the entity that ultimately provides cable modem
    service to the subscriber is the cable operator. As described in the
    record, the cable operator is providing its subscribers with a
    single service, cable modem service, not with separate transmission,
    e-mail, and web surfing services.[^193]

52. *Cable Operators' Relationships With ISPs -- Potential Private
    Carriage Offering.* AOL Time Warner recently has begun offering
    multiple brands of cable modem service to subscribers on all of its
    major systems pursuant to the *FTC AOL Time Warner Merger
    Order*.[^194] Currently AOL Time Warner offers cable modem service
    in conjunction with its affiliated ISPs, AOL and Road Runner, and
    with unaffiliated ISP EarthLink on all systems in each of its 20
    largest divisions.[^195] Arrangements with other unaffiliated ISPs
    are in various stages of development.[^196] AOL Time Warner
    describes its arrangements with EarthLink and the unaffiliated ISPs
    as a kind of partnership in which "the \[unaffiliated\] ISP and the
    cable operator together offer an integrated Internet service to
    consumers and both retain a direct interest in providing the service
    to the consumer."[^197] AOL Time Warner explains that "both TWC and
    the ISP retain a direct interest in each customer's account and
    share in the economics of each customer pursuant to the individually
    negotiated affiliation agreements."[^198] According to AOL Time
    Warner, "both TWC and the ISP take full responsibility for the
    service customers receive. Thus, customers can call either TWC or
    the ISP to have their problems addressed."[^199] Both AOL Time
    Warner and the ISP have the right to sell the ISP's brand of cable
    modem service and to set their own prices for the service.[^200]
    Regardless of which entity markets and bills for the service, it
    appears that AOL Time Warner and the ISP are cooperating to provide
    a retail offering, and both maintain a direct customer relationship
    with subscribers.

53. AOL Time Warner's arrangement with EarthLink, like those with other
    unaffiliated ISPs, represents a cooperative arrangement between AOL
    Time Warner and the ISP, in which the two entities together are
    providing a service at retail to subscribers.[^201] Although this
    arrangement differs in some respects from the input model described
    above, in that the ISP has the opportunity to establish a direct
    relationship with the subscriber, it is the same in that subscribers
    receive a single service, cable modem service, and that neither AOL
    Time Warner nor any ISP is offering subscribers a separate
    telecommunications service.[^202]

54. It is possible, however, that when EarthLink or other unaffiliated
    ISPs offer service to cable modem subscribers, they receive from AOL
    Time Warner an "input" that is a stand-alone transmission service,
    making the ISP an end-user of "telecommunications," as that term is
    defined in the Act. The record does not contain sufficient facts by
    which to make that determination.[^203] To the extent that AOL Time
    Warner is providing a stand-alone telecommunications offering to
    EarthLink or other ISPs, we conclude that the offering would be a
    private carrier service and not a common carrier service, because
    the record indicates that AOL Time Warner determines on an
    individual basis whether to deal with particular ISPs and on what
    terms to do so.[^204]

55. The Commission and courts have long distinguished between common
    carriage[^205] and private carriage by examining the particular
    service at issue.[^206] As the D.C. Circuit has stated, "the primary
    *sine qua non* of common carrier status is a quasi-public character,
    which arises out of the undertaking to carry for all people
    indifferently."[^207] In contrast, an entity is a private carrier
    for a particular service when a carrier "chooses its clients on an
    individual basis and determines in each particular case 'whether and
    on what terms to serve' and there is no specific regulatory
    compulsion to serve all indifferently."[^208] The record indicates
    that AOL Time Warner is determining on an individual basis whether
    to deal with particular ISPs and is in each case deciding the terms
    on which it will deal with any particular ISP.[^209] To the extent
    that AOL Time Warner is making an offering of pure
    telecommunications to ISPs, it is dealing with each ISP on an
    individualized basis and is not offering any transmission service
    indiscriminately to all ISPs.[^210] Thus, such an offering would be
    a private carrier service, not a "telecommunications service."
    Similarly, to the extent that other cable providers elect to provide
    pure telecommunications to selected clients with whom they deal on
    an individualized basis, we would expect their offerings to be
    private carrier service.

56. *AT&T v. City of Portland*. We recognize that the United States
    Court of Appeals for the Ninth Circuit considered issues related to
    the classification of cable modem service in *AT&T v. City of
    Portland*.[^211] While we are considering the broad issue of the
    appropriate national framework for the regulation of cable modem
    service, the *Portland* court considered a much narrower issue \--
    whether a local franchising authority, whose authority was limited
    to cable service, had the authority to condition its approval of a
    cable operator's merger on the operator's grant of multiple ISP
    access.[^212] In that case, the court held that the cable modem
    service at issue, \@Home, was not a "cable service."[^213] The court
    further concluded that:

> \@Home consists of two elements: . . . . To the extent \@Home is a
> conventional ISP, its activities are that of an information service.
> However, to the extent that \@Home provides its subscribers Internet
> transmission over its cable broadband facility, it is providing a
> telecommunications service as defined in the Communications Act.
> [^214]

57. The Ninth Circuit's decision was based on a record that was less
    than comprehensive. The parties proceeded on the assumption that the
    cable modem service at issue was a cable service and therefore did
    not brief the regulatory classification issue.[^215] Notably, the
    Commission, filing as *amicus curiae*, was not a party to the case
    and did not provide its expert opinion on this issue.[^216] In
    contrast, the record in this proceeding, developed over the course
    of a year through written comments and replies and meetings with
    interested parties, has fully addressed the classification issue and
    explored the characteristics of cable modem service as it is now
    provided.

58. The Ninth Circuit could have resolved the narrow question before it
    by finding that cable modem service is not a cable service.
    Nevertheless, in the passage quoted above the court concluded that
    because there is a \"telecommunications\" component involved in
    providing cable modem service, a separate \"telecommunications
    service\" is also being offered within the meaning of section 3(46)
    of the Act.[^217] As discussed in paragraph 40 above, however, under
    the Act telecommunications is distinct from telecommunications
    service. Though by definition an information service includes a
    telecommunications component, the mere existence of such a
    component, without more, does not indicate that there is a separate
    offering of a telecommunications service to the subscriber.[^218]
    The Ninth Circuit did not have the benefit of briefing by the
    parties or the Commission on this issue and the developing law in
    this area.[^219]

59. *Commission Authority.* Having concluded that cable modem service is
    an information service, we clarify that it is an interstate
    information service. The Commission has found that "traffic bound
    for information service providers (including Internet access
    traffic) often has an interstate component."[^220] The Commission
    concluded that although such traffic is both interstate and
    intrastate in nature, it "is properly classified as interstate and
    it falls under the Commission's . . . jurisdiction."[^221] The
    jurisdictional analysis rests on an end-to-end analysis, in this
    case on an examination of the location of the points among which
    cable modem service communications travel. These points are often in
    different states and countries.[^222] Accordingly, cable modem
    service is an interstate information service.[^223]

## "Cable Service" Classification

60. We find that cable modem service is not a "cable service" under the
    definition prescribed by the Act.[^224] Section 602 of the Act
    defines "cable service" as "(A) the one-way transmission to
    subscribers of (i) video programming, or (ii) other programming
    service, and (B) subscriber interaction, if any, which is required
    for the selection or use of such video programming or other
    programming service."[^225] The Act further defines "video
    programming" as "programming provided by, or generally considered
    comparable to programming provided by, a television broadcast
    station."[^226] "Other programming service" is defined as
    "information that a cable operator makes available to all
    subscribers generally."[^227] The Act states that a "cable operator"
    provides cable service over a "cable system" it owns or
    manages.[^228] Commenters debating whether the cable service
    definition applies to cable modem service focus their arguments
    primarily on what is meant by the terms "one-way transmission" and
    "other programming service" that were part of the definition as
    originally enacted in 1984 and the term "or use" added in 1996. We
    will analyze key phrases in the statutory definition.

61. *One-Way Transmission to Subscribers.* The phrase "one-way
    transmission to subscribers" in the definition reflects the
    traditional view of cable as primarily a medium of mass
    communication, with the same package or packages of video
    programming transmitted from the cable operator and available to all
    subscribers.[^229] When the definition was enacted in 1984, cable
    systems designed for the traditional one-way delivery of programming
    were developing the capability to provide "'two-way' services, such
    as the transmission of voice and data traffic, and transactional
    services such as at-home shopping and banking."[^230] The
    legislative history indicates that Congress intended the cable
    service definition "to mark the boundary between those services
    provided over a cable system which would be exempted from common
    carrier regulation under section 621(c) and all other communications
    services that could be provided over a cable system."[^231] Thus,
    the definition reflected the traditional view that the one-way
    delivery of television programs, movies, and sporting events is not
    a traditional common carrier activity and should not be regulated as
    such.[^232]

62. The Commission has previously interpreted the term "transmission" in
    the cable services definition "as requiring active participation in
    the selection and distribution of video programming," an
    interpretation that the D.C. Circuit has upheld.[^233] In the *Video
    Dialtone* proceeding, the Commission found that control over video
    content distinguished cable service from video dialtone service, the
    provision of a transparent video conduit to be used for delivering
    the programming of others.[^234] Because the "one way transmission
    requirement" applies to all content in the cable services
    definition, operator control over the selection of content offered
    to subscribers is a characteristic of both video programming and
    other programming service provided as a cable service. We recognize,
    as AT&T and the National League of Cities point out, that some
    operators or their affiliated ISPs may themselves produce or obtain
    the rights to content accessible through their web sites,[^235] but
    cable operators do not control the majority of information
    accessible by cable modem subscribers, as discussed further below.

63. *Other Programming Service.* The statutory definition specifies that
    cable service includes two types of content. One is the video
    programming historically transmitted by cable operators to
    subscribers, which is not provided today through cable modem
    service,[^236] as commenters generally agree.[^237] The other is the
    category of "other programming service," which the Act defines as
    "information that a cable operator makes available to all
    subscribers generally."[^238] The 1984 legislative history describes
    "other programming service" as "non-video information" having the
    characteristics of traditional video programming.[^239] "Other
    programming service" does not include information that is subscriber
    specific.[^240]

64. *Subscriber Interaction.* While "cable service" is defined as the
    "one-way transmission" of video programming or other programming
    services, the definition specifically contemplates some subscriber
    interaction. The definition enacted in 1984 provided for "subscriber
    interaction, if any, which is required for the selection" of
    content, so that cable service includes subscribers' ability to
    select video programming and information provided in other non-video
    programming services.[^241] The legislative history states that
    Congress intended "simple menu-selection" or searches of pre-sorted
    information from an index of keywords that would not activate a
    sorting program and "would not produce a subset of data individually
    tailored to the subscriber's request" to be cable services. On the
    other hand, offering the capacity to engage in transactions or
    off-premises data processing,[^242] including unlimited keyword
    searches or the capacity to communicate instructions or commands to
    software programs stored in facilities off the subscribers'
    premises,[^243] would not be.[^244] Thus, operators offering video
    programming or non-video information could also offer subscribers
    the on-line capability to choose the content of interest to them,
    but not to manipulate, customize or interact with the information
    on-line.[^245] As the Commission has held, services offering a high
    degree of interactivity, such as offering subscribers the capability
    for tailoring a video image to a subscriber's specific requests,
    would fall outside the scope of video programming under the
    definition of "cable service" enacted in 1984.[^246]

65. *"Or Use."* The 1996 Telecommunications Act ("1996 Act") added the
    words "or use" to the cable service definition, so that a cable
    service may now include "subscriber interaction, if any, which is
    required for the selection *or use*" of cable services.[^247] We
    disagree with those cable operator and franchising authority
    commenters who argue that this amendment brings cable modem service
    within the definition of cable service.[^248] The amendment itself
    addresses only the use of content otherwise qualifying as cable
    service. As the D.C. Circuit has pointed out, the subsection of the
    definition permitting subscriber interaction is qualified by the
    term "if any," implying that "subscriber interaction . . . is not a
    necessary component of cable service."[^249] Cable service continues
    to be defined as "the one-way transmission to subscribers," and both
    video programming and other programming services remain subject to
    this limitation.[^250] The definition of "other programming service"
    continues to be "information that a cable operator makes available
    to all subscribers generally."[^251]

66. The legislative history relied on by commenters who favor an
    expansive reading of the amendment does not require the result they
    advocate. The Joint Explanatory Statement for the 1996 Act states:
    "The conferees intend the amendment to reflect the evolution of
    cable to include interactive services such as game channels and
    information services made available to subscribers by the cable
    operator, as well as enhanced services."[^252] This statement
    supports an intent to permit interactivity associated with both
    video and other programming services provided by cable operators to
    subscribers. If Congress intended by the language in the Joint
    Explanatory Statement to broaden the meaning of cable services to
    include stand-alone "information services" as defined in the 1996
    Act or "enhanced services" as that term has traditionally been
    defined, the language of the statute itself does not reflect this
    intent.

67. In light of the statutory language itself and the ambiguities in the
    legislative history, we find that the addition of the term "or use"
    to the definition of cable service does not bring cable modem
    service within the definition of cable service. Rather, we believe
    that the one-way transmission requirement in that definition
    continues to require that the cable operator be in control of
    selecting and distributing content to subscribers and that the
    content be available to all subscribers generally. Based on the
    record before us, we find that cable modem service does not have the
    characteristics required for a cable service. The record shows cable
    modem service to be a service built around Internet access, which,
    among other things, allows subscribers to define searches for
    information throughout the World Wide Web, query web sites for
    information, engage in transactions, receive individually tailored
    responses to their requests, generate their own information, and
    exchange e-mail.[^253] That the cable operator makes subscriber
    access to the Internet possible does not establish the operator's
    control over the selection of the information made available to
    subscribers via the Internet.[^254] Facilitating subscriber use of
    the Internet by giving subscribers access to the Internet's TCP/IP
    protocols,[^255] making commercial arrangements for connections to
    the Internet backbone network,[^256] providing links to search
    engines on the home page, providing home page links to web sites
    that can be searched,[^257] or caching frequently requested
    information to enhance the high-speed performance of the
    network,[^258] does not put the Internet experience offered through
    the cable modem service in either the video programming or other
    programming service categories of cable service. These capabilities
    may make the subscriber's Internet experience easier, faster, and
    more convenient, but the ultimate control of the experience lies
    with the subscriber.[^259] As EarthLink comments, the majority of
    the information accessed over the Internet is chosen individually by
    the Internet user without the involvement of the cable operator or a
    third party with which it contracts in the creation or selection of
    the content.[^260] Furthermore, much of the information received by
    the subscriber is tailored to that subscriber's interests.

68. Including proprietary information or packages of pre-selected web
    site links in the service does not change the classification.[^261]
    Even if discrete parts of cable modem service have characteristics
    of cable service, that does not require classification of the
    service as a cable service when it is predominantly Internet
    access.[^262] NCTA points to language in the 1984 House Report
    stating that the regulatory classification of separate cable
    services and non-cable services is not affected by the packaging or
    marketing of such services together.[^263] NCTA argues from this
    that the bundling of non-cable services with cable services does not
    contaminate the cable service or transform it into a non-cable
    service. The House Report language does not persuade us that the
    integrated cable modem service should be classified as a cable
    service. The House Report reflects congressional intent in 1984,
    expressed again in the Joint Explanatory Statement accompanying the
    1996 Act,[^264] that existing regulatory authority over
    non-communications services was not to be affected by Title VI, and
    it is consistent with the Commission's treatment of bundled
    offerings of separate telecommunications services with
    non-telecommunications services. Our determination that cable modem
    service is not a cable service does not mean that the cable operator
    cannot provide the service, just that the service is not subject to
    Title VI.

69. *Internet Tax Freedom Act.* We also are not persuaded by arguments
    that the Internet Tax Freedom Act, enacted more than two years after
    the amendment at issue, demonstrates any congressional intent
    regarding the regulatory classification of cable modem
    service.[^265] That statute provides for a moratorium on "taxes on
    Internet access, unless such tax was generally imposed and actually
    enforced prior to October 1, 1998."[^266] The statute defines "tax"
    as "(i) any charge imposed by any governmental entity for the
    purpose of generating revenues for governmental purposes, and is not
    a fee imposed for a specific privilege, service, or benefit
    conferred; or (ii) the imposition on a seller of an obligation to
    collect and to remit to a governmental entity any sales or use tax
    imposed on a buyer by a governmental entity."[^267] It specifically
    exempts franchise fees for cable services from the definition of
    taxes.[^268] Los Angeles and the National League of Cities argue
    that this exemption would not be necessary unless Congress believed
    cable modem service to be a "cable service."[^269] However, "the
    views of a subsequent Congress form a hazardous basis for inferring
    the intent of an earlier one,"[^270] and as the National League of
    Cities acknowledges, may not be dispositive.[^271] Nothing in the
    Internet Tax Freedom Act shows any congressional intent to address
    or amend the statutory definition of "cable service" in the
    Communications Act. The exemption simply makes clear that franchise
    fee obligations for cable services are not affected by the
    moratorium.

## Other Statutory Classifications

70. A few commenters advocate other statutory classifications for cable
    modem service, such as \"advanced telecommunications capability\" as
    defined in section 706 of the 1996 Telecommunications Act.[^272]
    Most cable modem service fits within our definition of advanced
    telecommunications capability because it affords the user the
    ability to send and receive information at speeds higher than 200
    kbps.[^273] Section 706 does not, however, impose particular
    obligations on providers of such capability. Accordingly, we need
    not consider cable modem service\'s status as advanced
    telecommunications capability in resolving the issue of statutory
    classification. Consistent with section 706, however, in the
    following Section, we seek comment on what regulatory framework will
    promote the deployment of cable modem service, as well as other
    forms of advanced telecommunications capability, to all Americans in
    a reasonable and timely fashion.[^274]

71. Some commenters suggest that we create a category of service that
    would be within our general authority over \"interstate and foreign
    commerce in communication by wire and radio.\"[^275] Because we have
    found that cable modem service fits within the statutory definition
    of an information service, we need not consider whether we have the
    authority to create a new category of service.

# NOTICE OF PROPOSED RULEMAKING

## Background

72. Having determined that cable modem service is an interstate
    information service, we now address the regulatory implications of
    our determination. We note that the record in the Notice contains
    extensive comments on the Commission's authority to regulate cable
    modem service, as well as the costs and benefits of imposing a
    multiple ISP requirement on cable operators. Nonetheless, we
    initiate a rulemaking proceeding to examine these issues in light of
    the Commission's recent initiation of the *Wireline Broadband
    NPRM*.[^276] We also seek to further examine the scope of the
    Commission's jurisdiction to regulate cable modem service, including
    whether there are any Constitutional limitations on the exercise of
    that jurisdiction. Next, in light of marketplace developments, we
    consider whether it is necessary or appropriate at this time to
    require that cable operators provide unaffiliated ISPs with the
    right to access cable modem service customers directly (what we
    refer to hereafter as "multiple ISP access"). We also seek comment
    on the role of state and local franchising authorities in regulating
    cable modem service. Finally, we note the relationship between our
    classification decision and statutory or regulatory provisions
    concerning pole attachments, universal service, and the protection
    of subscriber privacy.

73. In considering whether regulation of cable modem service is
    appropriate, we are guided by the principles set forth above.[^277]
    First and foremost, we are guided by our statutory mandates to
    "encourage the ubiquitous availability of broadband to all
    Americans."[^278] Section 706 of the 1996 Act charges the Commission
    with "encourag\[ing\] the deployment on a reasonable and timely
    basis of advanced telecommunications capability to all Americans" by
    "regulatory forbearance, measures that promote competition or other
    regulating methods that remove barriers to infrastructure
    investment."[^279] Moreover, consistent with section 230(b)(2) of
    the Act, we seek "to preserve the vibrant and competitive free
    market that presently exists for the Internet and other interactive
    computer services, unfettered by Federal or State regulation."[^280]
    Second, we are mindful of the need to minimize both regulation of
    broadband services and regulatory uncertainty in order to promote
    investment and innovation in a competitive market.[^281] Third, we
    seek to encourage facilities-based broadband competition. By
    promoting development and deployment of multiple platforms, we will
    best ensure that public demands and needs for broadband services can
    be met. Fourth, we strive to develop an analytical approach that is,
    to the extent possible, consistent across multiple platforms.

74. *Different Models of Multiple ISP Access.* The Notice in this docket
    sought comment on three possible models pursuant to which a cable
    operator could be required to provide multiple ISP access.[^282]
    Some commenters addressed one or more of these models.[^283] Other
    commenters proposed different models for mandating multiple ISP
    access. While some proposed to rely primarily on private negotiation
    among cable operators and ISPs,[^284] others proposed regulation
    comparable to that imposed on incumbent LECs' DSL service[^285] or
    to cable operators' leased access obligations.[^286] Others
    advocated regulation of the cable operator's facilities comparable
    to regulation of the unbundled network elements of incumbent LECs
    pursuant to section 251(c)(3).[^287] Another form of multiple ISP
    access is provided consistent with the FTC AOL Time Warner Merger
    Order.[^288] Therefore, we ask that parties, in their comments,
    specify whether they are addressing any form of multiple ISP access
    in particular or all the forms that have been proposed. Commenters
    should also consider whether any access requirement should
    specifically limit ISP access to uses related to the offering of
    cable modem service, or should explicitly permit other uses by ISPs.

## Commission Authority

75. Federal courts have long recognized the Commission's authority to
    promulgate regulations to effectuate the goals and accompanying
    provisions of the Act in the absence of explicit regulatory
    authority, if the regulations are reasonably ancillary to existing
    Commission statutory authority.[^289] This authority stems from
    several provisions of the Communications Act. Section 1 of the Act
    charges the Commission with "execut\[ing\] and enforc\[ing\] the
    provisions of this Act,"[^290] provisions which extend "to all
    interstate and foreign communication by wire or radio . . . and . .
    . all persons engaged within the United States in such
    communication.\"[^291] Moreover, section 4(i) provides that "\[t\]he
    Commission may perform any and all acts, make such rules and
    regulations, and issue such orders, not inconsistent with the Act,
    as may be necessary in the execution of its functions."[^292] The
    Commission's authority pursuant to Title I, however, is not
    "unrestrained" and may only be exercised provided such action is
    "necessary to ensure the achievement of the Commission's statutory
    responsibilities."[^293]

76. The Commission asserted ancillary jurisdiction over information
    services (then called "enhanced services") in the Computer
    Inquiries.[^294] Since then, it has only exercised that authority in
    limited instances.[^295] Private interstate communications services
    likewise fall within the Commission's subject matter
    jurisdiction.[^296]

77. In the *Wireline Broadband NPRM*, the Commission tentatively
    concluded that wireline broadband Internet access service is an
    interstate information service.[^297] Consistent with this tentative
    conclusion, we requested comment on the extent to which we should
    exercise our Title I ancillary jurisdiction to regulate the
    provision of wireline broadband Internet access service by incumbent
    local exchange carriers. Given our classification above of cable
    modem service as an interstate information service, we now seek
    comment on whether the Commission should exercise its Title I
    authority here with regard to the provision of cable modem service.

78. We note that in both proceedings, we are requesting comment on the
    extent to which we should exercise Title I authority to regulate the
    facilities-based provision of interstate information services. We
    seek comment regarding how our findings and decisions in one
    proceeding should impact the other. We also request comment on
    whether there are legal or policy reasons why we should reach
    different conclusions with respect to wireline broadband Internet
    access service and cable modem service. Should any decision to
    exercise Title I jurisdiction over either service be influenced by
    the cable operators\' current status as the leading providers of
    residential broadband services?

79. We seek comment on any explicit statutory provisions, including
    expressions of congressional goals, that would be furthered by the
    Commission's exercise of ancillary jurisdiction over cable modem
    service. One possibility is the Commission's basic purpose \"to make
    available, so far as possible, to all the people of the United
    States . . . a rapid, efficient, Nation‑wide, and world‑wide wire
    and radio communication service with adequate facilities at
    reasonable charges.\"[^298] Other statutory grounds might include
    the goals stated in section 230(b) of the Act,[^299] the Title VI
    goal of assuring "that cable communications provide and are
    encouraged to provide the widest possible diversity of information
    sources and services to the public,"[^300] and section 706 of the
    1996 Act.[^301] We request comment on the use of these or other
    statutory provisions as the basis for our exercise of Title I
    jurisdiction. We also request comment on whether our reliance on our
    ancillary jurisdiction in support of these or other provisions would
    be analogous to our reliance on ancillary jurisdiction in adoption
    of the *Computer Inquiry* rules. In addition, given the relationship
    of cable modem service (including the underlying transmission
    component) to services provided by wireline common carriers, we seek
    comment on whether there are any additional bases for asserting
    ancillary jurisdiction.

80. *The First Amendment.* Many commenters have debated whether a
    federally-mandated system of multiple ISP access would violate the
    First Amendment rights of cable operators.[^302] We seek comment on
    this issue and, in particular, on the level of First Amendment
    scrutiny that would apply to a federal multiple ISP access
    requirement. Because the record already contains comment on First
    Amendment Constitutional issues potentially raised by multiple ISP
    access, we ask commenters to update the record. For example, has
    recent case law[^303] or Commission precedent[^304] altered or
    clarified the First Amendment analysis that would be applicable to
    multiple ISP access? Have marketplace conditions in the residential
    high-speed Internet access business changed since the close of the
    pleading cycle in ways that alter the First Amendment analysis? Have
    trials and limited commercial offerings of different kinds of
    multiple ISP access shown that certain types of access place a
    minimal burden on the cable operators while achieving the maximum
    choice for subscribers?

81. *The Fifth Amendment.* Several commenters argue that multiple ISP
    access would constitute a "per se" or "regulatory" taking of the
    cable operator's property without just compensation under the
    Takings Clause of the Fifth Amendment to the U.S.
    Constitution.[^305] We seek comment on this issue. If a form of
    multiple ISP access did entail a taking, what would be "just
    compensation" for it? Would ensuring just compensation necessarily
    involve regulators in setting the price that a cable operator
    charges unaffiliated ISPs (or vice versa)? Or could just
    compensation be ensured by some market-based process of
    negotiations? Do recent technological developments, technical
    trials, and limited commercial offerings of multiple ISP access
    indicate that some forms of multiple ISP access minimize occupation
    of the cable operator's property and economic harm to it? We request
    comment on these issues.

82. *Other Constitutional Issues.* We seek comment on whether there are
    additional constitutional concerns related to multiple ISP access
    requirements.

## Marketplace Developments

83. Since we issued the Notice, the cable modem service marketplace has
    changed significantly. As discussed above, the cable modem service
    business is still nascent, and the shape of broadband deployment is
    not yet clear. Business relationships among cable operators and
    their service offerings are evolving.[^306] Until recently, some
    cable operators had exclusive contracts with one affiliated ISP.
    Now, AOL Time Warner, Comcast and AT&T have each reached agreements
    that allow certain ISPs access to the cable operator's system. As
    described in detail above,[^307] in accordance with conditions
    imposed on the AOL Time Warner merger by the FTC, AOL Time Warner
    already is offering ISP choice to its subscribers.[^308] Comcast
    recently announced that an unaffiliated company, United Online, and
    its NetZero and Juno Internet services would be available as part of
    Comcast's cable modem service.[^309] Comcast also appears to have
    reached a conditional agreement with Microsoft to provide MSN ISP
    service on non-discriminatory terms.[^310] AT&T has announced that
    it plans to deploy multiple-ISP service commercially in several
    major markets by mid-2002 and that EarthLink will be included in its
    cable modem service in certain cities.[^311] Finally, Cox is
    conducting technical trials of multiple ISP access.[^312]

84. We ask that commenters refresh the record on these points, and we
    intend to monitor the industry closely. We seek comment in
    particular on whether the commercial relationships and trials
    discussed above demonstrate that the market will provide consumers a
    choice of ISPs without government intervention, or whether the
    absence of widespread business arrangements raises a level of
    concern sufficient to warrant Commission action. If parties believe
    that Commission intervention is necessary, we ask that they describe
    in detail what sort of regulations we should impose. We also request
    comment regarding whether any decision we make about multiple access
    requirements for cable systems in this proceeding should apply to
    Open Video Systems.[^313]

85. In considering multiple ISP access requirements, we will seek to
    promote the goals set forth in paragraphs 4-6 above. We seek comment
    regarding whether, in current and likely future market conditions,
    any form of multiple ISP access is needed to promote those goals.
    For example, would a multiple ISP access mandate promote deployment
    of advanced telecommunications capability; spur investment in
    facilities to provide high-speed Internet access service and
    innovation among service providers, ISPs, and creators of content;
    and/or facilitate intramodal or intermodal competition?[^314] Or
    would it have the opposite effects? Moreover, we seek comment on
    whether the Commission's decisionmaking should be guided by
    principles which embrace intramodal competition. If so, we seek
    comment on whether the market can or will satisfy these principles
    or whether some form of multiple ISP access regime for cable systems
    is needed to do so. To what extent should our decision regarding
    multiple ISP access requirements be influenced by the desirability
    of 'regulatory parity,' namely the presence or absence of multiple
    ISP access regimes for other technologies (such as wireline,
    terrestrial wireless, and satellite) that offer residential
    high-speed Internet access service?[^315] To what extent should that
    decision be impacted by cable operators' current status as the
    leading providers of residential broadband services?

86. *Consumer Demand*. If there is a demand for access to several ISPs,
    is that demand being met today? Specifically, does "click through"
    access to any ISP and content on the World Wide Web produce the
    same, or almost the same, value that a regulatory system of multiple
    ISP access would produce? Is any cable operator or ISP denying, or
    likely to deny, click through access?

87. We note that we are unaware of any allegation that a cable operator
    has denied "click through" access to other ISPs Moreover, although
    it is technically feasible for a cable operator to deny access to
    unaffiliated content, or to relegate unaffiliated content to the
    "slow lane" of its residential high-speed Internet access service,
    we are unaware of a single allegation that a cable operator has done
    so.[^316] Is the threat that subscriber access to Internet content
    or services could be blocked or impaired, as compared to content or
    services provided by the cable operator or its affiliate, sufficient
    to justify regulatory intervention at this time?

88. *Cost/Benefit Analysis.* We request comment on the costs that a
    multiple ISP access mandate would impose on cable operators and on
    the benefits that a mandate would bring to consumers. Would some
    forms of multiple ISP access be less costly to cable operators[^317]
    and more beneficial to consumers than others? Is the cost/benefit
    calculation for multiple ISP access different for small cable
    operators than it is for others? Would the requirements imposed on
    telecommunications carriers by our Second or Third Computer
    Inquiries[^318] provide a useful model for a multiple ISP access
    regime? Would the new forms of multiple ISP access that are being
    deployed or are under consideration by cable operators, such as the
    model being implemented by AOL Time Warner pursuant to the FTC AOL
    Time Warner Merger Order,[^319] provide useful models? Other
    possible means of effecting a multiple ISP access regime include
    adopting a general rule of reasonableness for cable operators in
    their dealings with ISPs seeking access to their cable systems
    and/or requiring cable operators to make high-speed transmission
    available to other ISPs at "market-based prices."[^320] We could
    then rely on our complaint processes to resolve individual disputes
    about these standards. Would such a system of general principles and
    case-by-case adjudication achieve our goals in a timely and
    cost-effective manner?

89. What lessons, if any, do trials and current commercial offerings of
    multiple ISP access[^321] reveal about the costs and benefits of
    multiple ISP access and how such costs and benefits can be balanced?
    Has recent experience with the addition of source-based routers,
    described in paragraph 15 above, showed that technology to be an
    efficient form of multiple ISP access?

90. What would be the costs of regulatory enforcement of a multiple ISP
    access mandate? Would a multiple ISP access mandate lead to
    significant opportunities for regulatory arbitrage \-- businesses
    making decisions based on regulatory classifications rather than on
    customers\' preferences and innovative and sustainable business
    plans? Would a multiple ISP access mandate impose long term costs on
    the market? In light of the new and fast-changing nature of the
    residential high-speed Internet access business, would a multiple
    ISP access requirement, imposed at this time, hinder the development
    of a market that is still evolving?[^322] In particular, might a
    requirement preclude the discovery of network design, content,
    applications, and business models that would otherwise enjoy
    widespread adoption and enhance long-term consumer welfare?[^323] Is
    there a way to implement multiple ISP access now that would avoid
    any such harmful interference in the future and that would achieve
    the goals we set forth in paragraphs 4-6 above? If we adopt a
    multiple ISP access mandate for cable systems generally, should we
    exempt small cable systems from such a mandate because of the
    particular conditions that they face?

91. We recognize that much comment has already been provided regarding
    these issues, in this proceeding and others. Accordingly, we are
    particularly interested in comments that provide updated information
    and discuss relevant regulatory and judicial decisions issued since
    the comment period closed in this proceeding. We are likely to find
    particularly relevant and persuasive empirically supported studies
    that use well-established methods for quantifying benefits and
    harms, as well as comments based on well-established economic
    theory.

92. *Changing Market Conditions.* If we ultimately conclude not to
    impose multiple ISP access at this time, what, if any, future events
    should lead us to do so? Are there market conditions that are not
    currently pervasive but, should they become pervasive, would suggest
    the need for a multiple ISP access mandate in the future?[^324]
    Would these conditions include the acquisition of market power by
    cable operators in providing residential high-speed Internet access,
    cable operators' refusals to satisfy subscriber demand for multiple
    ISP access, or the evolution of a mature market for residential
    high-speed Internet access? Would a finding that subscriber access
    to Internet content or services may be blocked or impaired, as
    compared to other content or services, particularly that provided by
    the cable operator or its affiliate, support regulatory
    intervention? We seek comment on other conditions that would suggest
    regulation is needed and on objective, readily measurable criteria
    by which we could detect the occurrence of such conditions. Is
    ongoing monitoring appropriate to ensure that any relevant
    conditions are detected accurately and in a timely manner and, if
    so, what type of monitoring?

93. We also seek comment on indicia that a cable operator is offering a
    "telecommunications service"[^325] or private carrier service, on a
    stand-alone basis, to ISPs or subscribers. Such an offering might
    provide the Commission with grounds, respectively, for common
    carriage regulation or exercise of its ancillary authority. How
    might we detect that a cable operator is, in fact, making such an
    offering? If and when a cable operator makes such an offering, what,
    if any, access requirements should the Commission impose on it? For
    example, if we found that a cable operator were making such an
    offering, would that trigger the requirements of *Computer II and
    III* with respect to the retail offering of cable modem service to
    subscribers or make their application in the public interest?[^326]
    To what extent should these decisions impact, or be impacted by, the
    conclusions we make in our *Wireline Broadband NPRM* proceeding? We
    note that providers of individually negotiated private carriage may
    begin to make standard offerings of transmission service to the
    general public, so that the service becomes a telecommunications
    service within the meaning of the Act. We seek comment on the
    appropriate scope of regulation of any such offerings. We also seek
    comment on whether it would be appropriate to forbear from
    particular Title II obligations in these circumstances.[^327]

94. *Forbearance from Telecommunications Service Obligations.* As noted
    above, the U.S. District Court for the Southern District of
    California has expressed its view that it is bound by the Ninth
    Circuit's *Portland* decision with regard to the classification of
    cable modem service.[^328] The court noted, however, that the Ninth
    Circuit left open the question whether the Commission would exercise
    its forbearance authority to remove any telecommunications service
    regulations from the provision of cable modem service. Further, the
    district court stayed its proceedings "pending the resolution of the
    FCC's NOI proceeding" to determine whether the Commission will
    forbear in this circumstance.[^329] We note that the NOI remains
    open, and we address the issue of forbearance here.

95. To the extent that cable modem service may be subject to
    telecommunications service classification, we seek comment on
    whether we should forbear from applying each provision of Title II
    or common carrier regulation.[^330] We invite comment on whether
    enforcement of such provisions is not necessary to ensure that the
    charges, practices, classification or regulations in connection with
    cable modem service are just and reasonable and not unjustly or
    unreasonably discriminatory. Is enforcement not necessary for the
    protection of consumers? Would forbearance be consistent with the
    public interest? We tentatively conclude that such forbearance would
    be justified. As an initial matter, we note our determination that
    cable modem service, as described in the record, is appropriately
    classified as an information service and does not contain a distinct
    telecommunications service.[^331] The Commission has a long history
    of classifying information services as Title I services and thus not
    subject to the obligations and requirements imposed on services
    subject to Title II.[^332] Given that cable modem service will be
    treated as an information service in most of the country, we
    tentatively conclude that the public interest would be served by the
    uniform national policy that would result from the exercise of
    forbearance to the extent cable modem service is classified as a
    telecommunications service. We also believe that forbearance would
    be in the public interest because cable modem service is still in
    its early stages; supply and demand are still evolving; and several
    rival networks providing residential high-speed Internet access are
    still developing. For these same reasons we tentatively conclude
    that enforcement of Title II provisions and common carrier
    regulation is not necessary for the protection of consumers or to
    ensure that rates are just and reasonable and not unjustly or
    unreasonably discriminatory. As such, we believe that forbearance
    from the requirements of Title II and common carrier regulation is
    appropriate in this circumstance. We request comment on this
    analysis. Again, we request that commenters focus on how such
    forbearance and/or regulation would further the Commission's goals,
    stated in paragraphs 4-6 above.

## Consequences Of Legal Classification As Information Service

### State and Local Regulation of Cable Modem Service and Rights-Of-Way. 

96. As discussed above, cable modem service is an interstate information
    service within the scope of our jurisdiction over interstate and
    foreign communications.[^333] We recognize, however, that it is
    provided over the facilities of cable systems that occupy public
    rights-of-way in local communities. In order to facilitate our
    national policy goals, we seek to clarify the authority of State and
    local governments with respect to cable modem service.

97. By addressing the classification issues in the accompanying
    Declaratory Ruling, we seek to remove regulatory uncertainty that
    may discourage investment and innovation in broadband services and
    facilities. In this part of the Notice of Proposed Rulemaking, we
    address potential areas of regulatory uncertainty at the State and
    local levels that could also discourage such investment and
    innovation. We would be concerned if a patchwork of State and local
    regulations beyond matters of purely local concern resulted in
    inconsistent requirements affecting cable modem service, the
    technical design of the cable modem service facilities, or business
    arrangements that discouraged cable modem service deployment across
    political boundaries. We also would be concerned if State and local
    regulations limited the Commission's ability to achieve its national
    broadband policy goals to "promote the deployment of advanced
    telecommunications capability to all Americans in a reasonable and
    timely manner," "to promote the continued development of the
    Internet and other interactive computer services and other
    interactive media" and "to preserve the vibrant and competitive free
    market that presently exists for the Internet and other interactive
    computer services, unfettered by Federal or State regulation."[^334]

98. Accordingly, we seek comment regarding whether we should interpret
    the Commission's assertion of jurisdiction under the Communications
    Act to preclude State and local authorities from regulating cable
    modem service and facilities in particular ways.[^335] We note that
    the courts have recognized the Commission's authority under Title I
    to preempt non-Federal regulations that negate the Commission's
    goals, including regulations affecting enhanced services.[^336] We
    seek comment as to any additional basis for preempting such
    regulations. For example, does section 624(b) provide preemptive
    authority? Section 624(b) states that a franchising authority "may
    not . . . establish requirements for . . . other information
    services."[^337]

99. Below we address three specific types of local requirements that may
    be affected by our determination that cable modem service is an
    interstate information service: access requirements, franchise
    requirements, and franchise fees. However, we also request comment
    on any other forms of State and local regulation that would limit
    the Commission's ability to achieve its national broadband policy,
    discourage investment in advanced communications facilities, or
    create an unpredictable regulatory environment. Specifically, we
    seek comment as to whether we should use our preemption authority to
    preempt specific state laws or local regulations. We ask commenters
    to specify what preemption authority we would rely on in each case.

100. *Access Requirements.* For the most part, States and localities
     that have considered imposing access requirements have done so in
     the context of their Title VI authority to review cable franchise
     transfers.[^338] In light of our conclusion that cable modem
     service is an interstate information service, we seek comment on
     any regulatory authority that State and local governments may have
     with respect to cable modem service as an information service,
     including any authority to impose multiple ISP access requirements
     or to prohibit, limit, restrict, or condition the provision of
     cable modem service. Is such regulation consistent with any
     exercise of our jurisdiction over cable modem service under Title
     I, including any affirmative decision we might make to refrain from
     imposing specific regulatory requirements?

101. *Rights-of-Way and Franchising Issues.* The Commission has long
     recognized the important responsibility of local and State
     governments to manage rights-of-way.[^339] Indeed, Congress in 1984
     sought to "establish franchise procedures and standards which
     encourage growth and development of cable systems and which assure
     that cable systems are responsive to the needs and interests of the
     local community," and to "establish guidelines for the exercise of
     Federal, State, and local authority with respect to the regulation
     of cable systems."[^340]

102. We request comment on how our classification of cable modem service
     as an interstate information service impacts rights-of-way and
     franchising issues. We note that section 621 authorizes local
     franchising authorities to require cable operators to obtain a
     franchise to construct a cable system over public
     rights-of-way.[^341] Once a cable operator has obtained a franchise
     for such a system, our information service classification should
     not affect the right of cable operators to access rights-of-way as
     necessary to provide cable modem service or to use their previously
     franchised systems to provide cable modem service. We seek comment
     on this tentative conclusion. We also seek comment on whether
     providing additional services over upgraded cable facilities
     imposes additional burdens on the public rights-of-way such that
     the existing franchise process is inadequate. If so, does Title VI
     nevertheless preclude local franchising authorities from imposing
     additional requirements on cable modem service? We note that
     section 624(b) provides that, in a request for proposals for a
     franchise or franchise renewal, a franchising authority "may not .
     . . establish requirements for video programming or other
     information services."[^342] Furthermore, section 624(a) provides
     that "\[a\]ny franchising authority may not regulate the services,
     facilities, and equipment provided by a cable operator except to
     the extent consistent with this title."[^343] Based on the
     foregoing, we tentatively conclude that Title VI does not provide a
     basis for a local franchising authority to impose an additional
     franchise on a cable operator that provides cable modem service.

103. We also seek comment generally on the scope of local franchising
     authority over facilities-based providers of information services.
     Do State statutes and constitutional provisions authorizing local
     franchising in terms of utility services generally, or cable and
     telecommunications networks and services specifically, authorize
     localities to franchise providers of information service under
     existing law? If so, is there any basis for treating
     facilities-based providers of information services differently
     based on the facilities used?

104. As the Commission has previously stated, we believe that
     "administration of the public rights-of-way should not be used to
     undermine efforts of either cable or telecommunications providers
     to upgrade or build new facilities to provide a broad array of new
     communications services."[^344] We expect that State and local
     governments share this view and will work to facilitate the
     deployment of broadband services in their communities. The
     Commission has previously expressed concern about unnecessary
     regulation at the local level that extends far beyond local
     government interests in managing the public rights-of-way,[^345]
     and about the discriminatory application of regulation at the State
     and local levels.[^346] We are concerned that State or local
     regulation beyond that necessary to manage rights-of-way could
     impede competition and impose unnecessary delays and costs on the
     development of new broadband services. Some commenters have raised
     questions about potential State and local actions that could
     restrict entry, impose access or other requirements on cable modem
     service, or assess fees or taxes on cable Internet service.[^347]
     We seek comment on these issues.

105. Franchising authorities have expressed concern that their rights to
     collect franchise fees on cable modem service for the use of public
     rights-of-way would be affected if we were to find that cable modem
     service is not a cable service.[^348] We note that section 622(b)
     provides that "the franchise fees paid by a cable operator with
     respect to any cable system shall not exceed 5 percent of such
     cable operator's gross revenues derived . . . from the operation of
     the cable system to provide cable services."[^349] Given that we
     have found cable modem service to be an information service,
     revenue from cable modem service would not be included in the
     calculation of gross revenues from which the franchise fee ceiling
     is determined. Furthermore, we tentatively conclude that Title VI
     does not provide an independent basis of authority for assessing
     franchise fees on cable modem service. We seek comment on this
     issue. We also note Congress' concern regarding new taxes on
     Internet access imposed for the purpose of generating revenues when
     no specific privilege, service, or benefit is conferred and its
     concern regarding multiple or discriminatory taxes on electronic
     commerce.[^350]

106. *Franchise Fees Previously Paid Pursuant to Section 622.* Cable
     operators have expressed concern that any determination by the
     Commission, other than a finding that cable modem service falls
     within the classification of "cable service," will potentially
     expose cable operators to refund liability for franchise fees
     previously paid to localities and collected from subscribers based
     on cable modem service revenues.[^351] We understand that some
     cable operators, believing they were legitimately carrying out
     their obligations and rights under Title VI of the Act and local
     franchise agreements, collected franchise fees based on cable modem
     service revenues, identified these fees on subscriber bills, and
     remitted these franchise fees to local franchising authorities
     pursuant to the terms of their franchising agreements. In light of
     the Ninth Circuit's decision that cable modem service is not a
     "cable service," some cable operators have suspended collecting and
     remitting franchise fees for revenues from cable modem service in
     Ninth Circuit States out of concern about their exposure to
     significant litigation risk if they were to continue collecting a
     franchise fee on cable modem service.[^352] We understand that
     subscribers in other jurisdictions have raised the issue of whether
     franchise fees were lawfully collected from them and whether the
     fees collected should be refunded.[^353]

107. While the Commission generally will not assert jurisdiction over
     franchise fee disputes that concern matters of local taxation, the
     Commission's policy has been to resolve franchise fee questions
     that bear directly on a national policy concerning communications
     and that call upon our expertise.[^354] We seek comment on whether
     disputes regarding franchise fees based on cable modem service
     implicate such a national policy, given that the fees in question
     were collected pursuant to section 622 and that our classification
     decision will alter, on a national scale, the regulatory treatment
     of cable modem service. We seek comment on whether it is
     appropriate to exercise our jurisdiction under section 622 to
     resolve the issue of previously collected franchise fees based on
     cable modem service revenues or whether these issues are more
     appropriately resolved by the courts. We note that until the
     release of the Commission's declaratory ruling to the contrary,
     cable operators and local franchising authorities believed in good
     faith that cable modem service was a "cable service" for which
     franchise fees could be collected pursuant to section 622. As
     illustrated by the Fourth Circuit's statement in *Henrico County*,
     that "the issue of the proper regulatory classification of cable
     modem service . . . is complex and subject to considerable
     debate,"[^355] cable operators and franchising authorities could
     not have been expected to predict that the Commission would
     classify cable modem service as other than a cable service.

108. *Consumer Protection and Customer Service.* We also seek comment on
     how our information service classification may affect other aspects
     of State or local regulation, such as consumer protection and
     customer service standards regarding cable modem service.
     Franchising authorities have expressed concern that their authority
     to impose consumer protection requirements pursuant to section 632
     of the Communications Act would be affected if cable modem service
     is not classified as "cable service."[^356] Does the authority
     conferred on franchising authorities by section 632(a) of the
     Communications Act to establish and enforce customer service
     requirements apply to cable modem service provided by a cable
     operator? [^357] Do the provisions in section 632(d), stating that
     nothing in Title VI "shall be construed to prohibit any State or
     any franchising authority from enacting or enforcing any consumer
     protection law, to the extent not specifically preempted by \[Title
     VI\],\" or "to prevent the establishment or enforcement" of
     customer service laws or regulations" that exceed Commission
     standards or address matters not addressed by Commission standards
     under section 632, apply to cable modem service?[^358]

### Pole Attachments

109. The Pole Attachment Act gives cable television systems and
     providers of telecommunications service the right to attach to
     poles of power and telephone companies at regulated rates.[^359] In
     *Gulf Power*, the United States Supreme Court held that the Pole
     Attachment Act applies to attachments by cable television systems
     that provide Internet service in addition to traditional cable
     service, without regard to the classification of the commingled
     cable modem service.[^360] An attachment not falling within the
     statutory rate formulas provided in sections 224(d) for attachments
     by cable service providers or 224(e) for attachments by
     telecommunications service providers would be subject to just and
     reasonable rates prescribed by the Commission.[^361] In the *Pole
     Attachment Order*, the Commission had determined that the pole
     attachment rate applicable to attachments by cable television
     systems using pole attachments to provide both traditional cable
     services and Internet services should be determined by applying the
     formula specified in the statute for cable services.[^362] That
     decision is not affected by our categorization of cable modem
     service.

### Universal Service

110. Several commenters have questioned whether cable operators should
     be required to contribute to the universal service fund, pursuant
     to section 254(d) of the Communications Act,[^363] based on the
     revenues from cable operators' cable modem service offerings.[^364]
     In particular, commenters have focused on whether universal service
     contribution obligations should attach to what they characterize as
     the underlying telecommunications component of cable modem
     service.[^365] The Commission is considering whether providers of
     cable modem service should contribute to the universal service fund
     in a separate proceeding.[^366]

### Protection of Subscriber Privacy

111. Section 631 of the Communications Act addresses privacy for
     subscribers to "any cable service or other service" provided by a
     cable operator.[^367] "Other service" is defined as "any wire or
     radio communications service provided using any of the facilities
     of a cable operator that are used in the provision of cable
     service"[^368] and has been interpreted by a court to encompass
     Internet service provided via a cable system.[^369] Section 631
     requires cable operators to provide periodic written notice
     informing each subscriber about the nature and use of personally
     identifiable information to be collected by the cable operator.
     With certain exceptions, section 631 prohibits a cable operator
     from collecting or disclosing such information without the prior
     consent of the subscriber.[^370] The cable operator can collect
     information needed to provide a cable service or other service and
     can disclose information for a business activity related to such
     services. Section 631 further provides that "\[n\]othing within
     this title shall be construed to prohibit any State or any
     franchising authority from enacting or enforcing laws consistent
     with this section for the protection of subscriber privacy."[^371]

112. In light of our determination in the Declaratory Ruling that cable
     modem service is an information service, we believe that cable
     modem service would be included in the category of "other service"
     for purposes of section 631. We seek comment on this
     interpretation. Although section 631's terms are enforced by the
     courts, and not by the Commission,[^372] we seek comment as to how
     the privacy requirements of section 631 affect providers of cable
     modem service.[^373]

# ADMINISTRATIVE MATTERs

## Initial Regulatory Flexibility Analysis 

113. As required by the Regulatory Flexibility Act of 1980, as amended
     (\"RFA\"),[^374] the Commission has prepared this Initial
     Regulatory Flexibility Analysis (\"IRFA\") of the possible
     significant economic impact on a substantial number of small
     entities by the policies and rules considered in the notice of
     proposed rulemaking initiated herein. Written public comments are
     requested on this IRFA. Comments must be identified as responses to
     this IRFA and must be filed by the deadlines for comments on the
     notice of proposed rulemaking provided in paragraph 126 of this
     item. The Commission will send a copy of the notice of proposed
     rulemaking, including this IRFA, to the Chief Counsel for Advocacy
     of the Small Business Administration ("SBA").[^375] In addition,
     the notice of proposed rulemaking and the IRFA (or summaries
     thereof) will be published in the Federal Register.[^376]

### Need for, and Objectives of, the Proposed Rules

114. With our declaratory ruling herein, we have sought to provide
     regulatory certainty for the emerging cable modem service industry
     by resolving a nationwide controversy concerning the proper
     regulatory classification of cable modem service under federal
     law.[^377] In doing so, we recognize that there are a number of
     related issues that may need resolution in the form of federal
     rules. By this notice of proposed rulemaking, we seek comment on
     certain issues related to the practical implementation of our
     classification of cable modem service as an information service.

### Legal Basis 

115. The authority for the action proposed in this rulemaking is
     contained in Sections 1, 2(a), 3, 4(i), 4(j), 303, and 601 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152(a),
     153, 154(i), 154(j), 303, and 521, and Section 706 of the
     Telecommunications Act of 1996, 47 U.S.C. § 157 nt.

### Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

116. The RFA directs agencies to provide a description of, and where
     feasible, an estimate of the number of small entities that may be
     affected by the proposed rules, if adopted.[^378] The RFA generally
     defines the term "small entity" as having the same meaning as the
     terms "small business," "small organization," and "small
     governmental jurisdiction."[^379] In addition, the term "small
     business" has the same meaning as the term "small business concern"
     under the Small Business Act.[^380] A "small business concern" is
     one which: (1) is independently owned and operated; (2) is not
     dominant in its field of operation; and (3) satisfies any
     additional criteria established by the SBA.[^381]

117. The SBA has developed a small business size standard for cable and
     other program distribution," which includes all such companies
     generating \$11 million or less in revenue annually.[^382] This
     category includes, among others, cable operators, closed circuit
     television services, direct broadcast satellite services,
     multipoint distribution services, open video systems ("OVS"),
     satellite master antenna television ("SMATV") systems, and
     subscription television services. According to the Census Bureau
     data from 1992, there were 1,788 total cable and other pay
     television services and 1,423 had less than \$11 million in
     revenue.[^383] We address cable operators and OVS operators below
     to provide a more precise estimate of the affected small entities.
     We do not believe that the other pay television services would be
     affected by the proposals in this notice of proposed rulemaking.

118. *Cable Systems*. The Commission has developed its own small
     business size standard for a small cable operator for the purposes
     of rate regulation. Under the Commission\'s rules, a \"small cable
     company\" is one serving fewer than 400,000 subscribers
     nationwide.[^384] Based on our most recent information, we estimate
     that there were 1,439 cable operators that qualified as small cable
     companies at the end of 1995.[^385] Since then, some of those
     companies may have grown to serve over 400,000 subscribers, and
     others may have been involved in transactions that caused them to
     be combined with other cable operators. Consequently, we estimate
     that there are fewer than 1,439 small cable companies that may be
     affected by the proposed rules.

119. The Communications Act of 1934, as amended, also contains a size
     standard for a "small cable operator," which is \"a cable operator
     that, directly or through an affiliate, serves in the aggregate
     fewer than one percent of all subscribers in the United States and
     is not affiliated with any entity or entities whose gross annual
     revenues in the aggregate exceed \$250,000,000.\"[^386] The
     Commission has determined that there are 67,700,000 subscribers in
     the United States.[^387] Therefore, an operator serving fewer than
     677,000 subscribers shall be deemed a small operator, if its annual
     revenues, when combined with the total annual revenues of all of
     its affiliates, do not exceed \$250 million in the aggregate.[^388]
     Based on available data, we estimate that the number of cable
     operators serving 677,000 subscribers or less totals approximately
     1,450.[^389] We do not request or collect information on whether
     cable operators are affiliated with entities whose gross annual
     revenues exceed \$250,000,000,[^390] and therefore are unable to
     estimate accurately the number of cable system operators that would
     qualify as small cable operators under the definition in the
     Communications Act.

120. *Open Video Systems*. Because OVS operators provide subscription
     services,[^391] OVS falls within the SBA-recognized definition of
     "Cable and Other Program Distribution."[^392] This standard
     provides that a small entity is one with \$11 million or less in
     annual receipts.[^393] The Commission has certified approximately
     25 OVS operators to serve 75 areas, and some of those are currently
     providing service.[^394] Affiliates of Residential Communications
     Network, Inc. ("RCN") received approval to operate OVS systems in
     New York City, Boston, Washington, D.C. and other areas. RCN has
     sufficient revenues to assure us that they do not qualify as small
     business entities. Little financial information is available for
     the other entities authorized to provide OVS that are not yet
     operational. Given that other entities have been authorized to
     provide OVS service but have not yet begun to generate revenues, we
     conclude that at least some of the OVS operators qualify as small
     entities.

### Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

121. The notice of proposed rulemaking seeks comment on the regulatory
     implications of the Commission's finding that cable modem service
     is an information service under the Communications Act.[^395]
     Specifically, the notice of proposed rulemaking seeks comment on
     whether the Commission should require cable operators that provide
     cable modem service to allow unaffiliated ISPs to have direct
     access to the cable operator's subscribers via the cable system
     facilities.

122. The notice of proposed rulemaking also seeks comment on the scope
     of state and local government authority over cable modem service in
     light of the Commission's finding that it is an information
     service. This determination may not have a direct effect on small
     entities, but indirectly it may impact small entities, such as
     small cable operators, if local governments are permitted to
     require cable operators to grant unaffiliated ISPs access to the
     cable system or if local governments are permitted to enforce other
     regulations that affect a cable operator's provision of cable modem
     service.

### Steps Taken to Minimize Significant Impact on Small Entities and Significant Alternatives Considered 

123. The IRFA requires an agency to describe any significant
     alternatives that it has considered in proposing regulatory
     approaches, which may include, among others, the following four
     alternatives: (1) the establishment of differing compliance or
     reporting requirements or timetables that take into account the
     resources available to small entities; (2) the clarification,
     consolidation, or simplification of compliance or reporting
     requirements under the rule for small entities; (3) the use of
     performance, rather than design, standards; and (4) an exemption
     from coverage of the rule, or any part thereof, for small entities.

124. The notice of proposed rulemaking seeks comment on several
     regulatory alternatives to implement the Commission's
     classification of cable modem service as an information service
     under the Communications Act. For example, alternatives considered
     in the notice of proposed rulemaking include whether unaffiliated
     ISPs should be provided with access to cable systems and, if so,
     which of the various access models should be adopted. In addition,
     we will also consider whether any access requirements ultimately
     adopted should be different for large cable operators from those
     imposed on small cable operators.[^396] Finally, the notice of
     proposed rulemaking considers whether the Commission should refrain
     entirely from imposing any ISP access requirements on cable
     operators. We would expect that whichever alternatives are chosen
     the Commission will seek to minimize any adverse effects on small
     entities.

### Federal Rules Which Duplicate, Overlap, or Conflict with the Commission\'s Proposals

125. None.

## Procedural Provisions

126. *Comments and Reply Comments.* Pursuant to applicable procedures
     set forth in sections 1.415 and 1.419 of the Commission\'s
     rules,[^397] interested parties may file comments on the notice of
     proposed rulemaking in CS Docket No. 02-52, *Appropriate Regulatory
     Treatment for Broadband Access to the Internet over Cable
     Facilities*, on or before 60 days after date of publication in the
     Federal Register, and reply comments on or before 90 days after
     date of publication in the Federal Register. Comments may be filed
     using the Commission\'s Electronic Comment Filing System ("ECFS")
     or by filing paper copies.[^398] Given recent changes in the
     Commission's mail delivery system, parties are strongly urged to
     use the ECFS to file their pleadings. Comments filed through the
     ECFS can be sent as an electronic file via the Internet to
     \<http://www.fcc.gov/e-file/ecfs.html\>. Only one copy of an
     electronic submission must be filed. In completing the transmittal
     screen, electronic filers should include their full name, Postal
     Service mailing address, and the applicable docket or rulemaking
     number. Parties may also submit an electronic comment by Internet
     e-mail. To receive filing instructions for e-mail comments,
     commenters should send an e-mail to ecfs@fcc.gov, and should
     include the following words in the body of the message, \"get form
     \<your e-mail address\>.\" A sample form and directions will be
     sent in reply.

127. Parties who choose to file by paper must file an original and four
     copies of each filing in CS Docket No. 02-52. If parties want each
     Commissioner to receive a personal copy of their comments, an
     original plus nine copies must be filed. All filings must be sent
     to the Commission\'s Acting Secretary, William F. Caton, Office of
     the Secretary, Federal Communications Commission, 445 12th Street,
     S.W., Washington D.C. 20054. All filings sent to the Commission by
     overnight delivery, *e.g.*, Federal Express, must be sent to the
     Commission's Acting Secretary, William F. Caton, Office of the
     Secretary, Federal Communications Commission, 445 12th Street,
     S.W., Washington D.C. 20024. All hand-delivered or
     messenger-delivered filings must be delivered to the Commission's
     filing location at 236 Massachusetts Avenue, N.E., Suite 110,
     Washington, D.C. 20002-4913.[^399] The filing hours at this
     facility are 8:00 a.m. to 7:00 p.m. Parties must also serve the
     following with either one copy of each filing via e-mail or two
     paper copies: (1) Qualex International, Portals II, 445 12^th^
     Street, S.W., Room CY-B402, Washington, D.C., 20554,
     telephone (202) 863-2893, facsimile (202) 863-2898, or e-mail at
     qualexint@aol.com; and (2) Sarah Whitesell, Cable Services Bureau,
     445 12^th^ Street, S.W., 3-C488, Washington, D.C., 20554,
     swhitese@fcc.gov. In addition, five copies of each filing must be
     filed with Linda Senecal, Cable Services Bureau, 445 12^th^ Street,
     S.W., 2-C438, Washington, D.C. 20554, lsenecal@fcc.gov.

128. *Ex Parte Rules.* This proceeding will be treated as a
     "permit-but-disclose" proceeding, subject to the
     "permit-but-disclose" requirements under section 1.1206(b) of the
     Commission's rules.[^400] Ex parte presentations are permissible if
     disclosed in accordance with Commission rules, except during the
     Sunshine Agenda period when presentations, ex parte or otherwise,
     are generally prohibited. Persons making oral ex parte
     presentations are reminded that a memorandum summarizing a
     presentation must contain a summary of the substance and not merely
     a listing of the subjects discussed. More than a one or two
     sentence description of the views and arguments presented is
     generally required.[^401] Additional rules pertaining to oral and
     written presentations are set forth in section 1.1206(b) of the
     Commission's rules. Parties submitting written ex parte
     presentations or summaries of oral ex parte presentations are urged
     to use the ECFS in accordance with the Commission rules discussed
     above. Parties filing paper ex parte submissions must file an
     original and one copy of each submission with the Commission's
     Acting Secretary, William F. Caton, at the appropriate address as
     shown above for filings sent by either U.S. mail, overnight
     delivery, or hand or messenger delivery. Parties must also serve
     the following with either one copy of each ex parte filing via
     e-mail or two paper copies: (1) Qualex International, Portals II,
     445 12^th^ Street, S.W., Room CY-B402, Washington, D.C., 20554,
     telephone (202) 863-2893, facsimile (202) 863-2898, or e-mail at
     qualexint@aol.com; and (2) Sarah Whitesell, Cable Services Bureau,
     445 12^th^ Street, S.W., 3-C488, Washington, D.C., 20554,
     swhitese@fcc.gov; and (3) Linda Senecal, Cable Services Bureau, 445
     12^th^ Street, S.W., 2-C438, Washington, D.C. 20554,
     lsenecal@fcc.gov.

129. *Availability of Documents.* Comments, reply comments, and ex parte
     submissions will be available for public inspection during regular
     business hours in the FCC Reference Center, Federal Communications
     Commission, 445 12th Street, S.W., CY-A257, Washington, D.C. 20554.
     Persons with disabilities who need assistance in the FCC Reference
     Center may contact Bill Cline at (202) 418-0267, (202) 418-7365
     TTY, or bcline@fcc.gov. These documents also will be available
     electronically at the Commission's Disabilities Issues Task Force
     web site: www.fcc.gov/dtf, and from the Commission's Electronic
     Comment Filing System. Documents are available electronically in
     ASCII text, Word 97, and Adobe Acrobat. Copies of filings in this
     proceeding may be obtained from Qualex International, Portals II,
     445 12^th^ Street, S.W., Room, CY-B402, Washington, D.C., 20554,
     telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail
     at qualexint@aol.com.

130. This document is available in alternative formats (computer
     diskette, large print, audio cassette, and Braille). Persons who
     need documents in such formats may contact Brian Millin at (202)
     418-7426, TTY (202) 418-7365, or send an e-mail to access@fcc.gov.

131. *Contact Information.* The Cable Services Bureau contact for this
     proceeding is Sarah Whitesell at (202) 418-7200, swhitese@fcc.gov.
     Press inquiries should be directed to Michelle Russo at (202)
     418-2358, mrusso@fcc.gov. TTY: (202) 418-7365 or (888) 835-5322.

132. *Declaratory Ruling.* Any future pleadings filed in response to the
     declaratory ruling in this Order should be filed under the caption,
     "Internet Over Cable Declaratory Ruling," GN Docket No. 00-185,
     separately from the comments filed in CS Docket No. 02-52.

# ordering clauses 

133. Accordingly, IT IS ORDERED, that pursuant to authority contained in
     sections 1, 2, 3, 4, 303, 403, and 601 of the Communications Act of
     1934, as amended, [47 U.S.C. §§ 151, 152, 153, 154, 303, 403, 521,
     section
     706](http://www.westlaw.com/find/default.wl?rs=CLWD2.2&vr=2.0&cite=47+USCA+ss+152%2C+153%2C+154%2C+303%2C+403%2C+521%2C+section+706)
     of the Telecommunications Act of 1996, and section 1.2 of the
     [Commission's Rules and Regulations, 47 C.F.R. §
     1.2](http://www.westlaw.com/find/default.wl?rs=CLWD2.2&vr=2.0&cite=47+CFR+s+1.2),
     this Declaratory Ruling and Notice of Proposed Rulemaking ARE
     ADOPTED.

134. IT IS FURTHER ORDERED that, pursuant to the authority contained in
     sections 1, 2, 3, 4, 303, 403, and 601 of the Communications Act of
     1934, as amended, [47 U.S.C. §§ 151, 152, 153, 154, 303, 403, 521,
     section
     706](http://www.westlaw.com/find/default.wl?rs=CLWD2.2&vr=2.0&cite=47+USCA+ss+152%2C+153%2C+154%2C+303%2C+403%2C+521%2C+section+706)
     of the Telecommunications Act of 1996, and section 1.2 of the
     [Commission's Rules and Regulations, 47 C.F.R. §
     1.2](http://www.westlaw.com/find/default.wl?rs=CLWD2.2&vr=2.0&cite=47+CFR+s+1.2),
     NOTICE IS HEREBY GIVEN of the proposals described in this Notice of
     Proposed Rulemaking.

135. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
     Bureau, Reference Information Center, shall send a copy of this
     Notice of Proposed Rulemaking, including the Initial Regulatory
     Flexibility Analysis, to the Chief Counsel for Advocacy of the
     Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> William F. Caton
>
> Acting Secretary

## Appendix {#appendix .unnumbered}

## List of Commenters {#list-of-commenters .unnumbered}

[Initial Comments]{.underline}

AeA

Alliance for Public Technology

American Cable Association ("ACA")

Association for Maximum Service Television, Inc. ("MST")

Association of Communications Enterprises ("ASCENT")\*

Association of America's Public Television Stations ("APTS")

AT&T Corporation ("AT&T")

Big Planet Inc. ("Big Planet")

Cable & Wireless

Cablevision Systems Corporation ("Cablevision")

Cellular Telecommunications Industry Association ("CTIA")

Center for Democracy & Technology

CenturyTel, Inc. ("CenturyTel")

Charter Communications ("Charter")

Circuit City Stores, Inc. ("Circuit City")

Citizens for a Sound Economy

City of Los Angeles ("Los Angeles")

City of New Orleans ("New Orleans")

Comcast Corporation ("Comcast")

Commercial Internet Exchange Association ("CIX")

Communications Workers of America

Competition Policy Institute

Competitive Access Coalition

Competitive Telecommunications Association ("CompTel")

Consumer and ISP Representatives (including: National Association of
Towns and

Townships, Citizen Power, Inc., the Utilities Commission, New Smyrna
Beach,

Fl., Amigo.net and NorthNet)

Consumers Union, Consumer Federation of America, Center for Media
Education and

Media Access Project ("CU")

Cox Communications ("Cox")

EarthLink, Inc ("EarthLink")

EchoStar Satellite Corporation ("EchoStar")

Excite@Home ("Excite")

Gemini Networks, Inc. ("Gemini")

Heartland Institute ("Heartland")

Information Technology Industry Council

Lampe, Matthew ("Lampe")

Marin Telecommunications Agency ("Marin")

Menard, Francois D. ("Menard")

Mercatus Center ("Mercatus")

Metricom, Inc. ("Metricom")

Millenium Media, Inc. ("Millenium")

National Association of Telecommunications Officers & Advisors ("NATOA")

National Cable Television Association ("NCTA")

National League of Cities, et al.

NetCompete Now

New Hampshire ISP Association

Newspaper Association of America

OpenNET Coalition ("OpenNET")

Organization for the Promotion and Advancement of Small
Telecommunications

Companies ("OPASTCO")

Qwest Communications International, Inc. ("Qwest")

Pegasus Communications Corp. ("Pegasus")

Progress & Freedom Foundation

RCN Telecom Services, Inc. ("RCN")

SBC Communications Inc. & BellSouth Corporation ("SBC/BellSouth")

SBCA and the SIA Satellite Broadband & Internet Division ("SBCA")

StarBand Communications ("StarBand")

Telecommunications Industry Association ("TIA")

Texas Office of Public Utility Counsel

Towns of East Hampton and Southampton, NY

United States Internet Industry Association & iAdvance ("USIIA")

United States Telecom Association ("USTA")

Utilicom Networks, Inc. ("Utilicom")

Verizon Communications ("Verizon")

WorldCom, Inc. ("WorldCom")

\*Late Filed

[REPLY COMMENTS]{.underline}

AARP

Adelphia Communications Corp. ("Adelphia")

Alliance for Community Media

Alliance for Public Technology

American Automobile Association ("AAA")

American Cable Association ("ACA")

AT&T Corp. ("AT&T")

Cable & Communications Corporation

California Cable Television Association ("CCTA")

Center for Democracy and Technology\*

Charter Communications ("Charter")

City and County of San Francisco ("San Francisco")

Comcast Corporation ("Comcast")

Commercial Internet Exchange ("CIX")

Competitive Access Coalition

Competitive Telecommunications Association ("CompTel")

Cox Communications ("Cox")

High Speed Access Corp. ("HSA")

Hughes Network Systems, Hughes Communications, Inc. & Hughes
Communications

Galaxy, Inc. ("Hughes")

IbssNet Internet Service\*

Insight Communications Company ("Insight")

Mediacom Communications Corp. ("Mediacom")\*

Menard, Francois D. ("Menard")

National Association of Broadcasters ("NAB")

National Association of Telecommunications Officers & Advisors ("NATOA")

National Association of Towns and Townships

National Cable Television Association ("NCTA")

National League of Cities, Texas Coalition of Cities & Cities of Palo
Alto & Eugene ("National League of Cities")

New Hampshire ISP Association

OpenNet Coalition ("OpenNET")

SBC Communications, Inc. & BellSouth Corp. ("SBC/BellSouth")

"Small ISPs" (Listed Below)

Speta, Professor James B. ("Speta")

StarBand Communications ("Starband")

State of California & the Public Utilities Commission\*

Texas Office of Public Utility Counsel, Consumer Federation of America
and

Consumers Union\*

Time Warner Cable ("Time Warner")

United States Telecom Association ("USTA")

Utilicom Networks LLC ("Utilicom")

Verizon Communications ("Verizon")

Voicestream Wireless ("Voicestream")

WorldCom Inc. ("WorldCom")

\*Late Filed

[Filings by Small ISPs]{.underline}

A+Net Internet

Advanced Computer & Communication Systems ("ACCS")

APK Net, Inc.

Association for Competitive Technology

Brand X Internet

Carolina Online

ColusaNET

Computer Office Solutions, Inc. ("COS")

DataFoundry.net

Fast Q.com

FlareNet, Inc.

Fiberhood Networks

Grapevine Internet Services

Hamptons Online

Hurricane Internet

IConnectDirect.com

Illuminati Online

Infobahn Outfitters

In4Web.com

Infinetivity

Instant Internet Corporation

HMC Ltd, Inc.

LavaNet Inc.

Naisp.net

Netalliance, Inc.

Networld Online

On-Ramp Indiana

Peak Internet

PCEZ.com

PortOne Internet

Questar Information Systems

RICA.Net

Safe Access

711.Net

SmartGate Corporation

StarGate

StarLinx

Sterling Communications

Sunrise Internet Services

Supernova Systems

Texas Communications

Texas.Net

Total Logic Systems

WestPA.net

Worldnet Communications

[Ex Parte Filings]{.underline}

Adelphia Communications

Allegiance Telecom

Allen, Timothy

American Cable Association

AOL Time Warner Inc.

AT&T Corporation

ATX Technologies, Inc.

BELD Broadband

California Cable Television Association

California Public Utilities Commission

Cellular Telecommunications & Internet Association

Charter Communications

Chester Communications

City of Boston Law Department

City of Los Angeles

Comcast Corporation

Competitive Telecommunications Association

Consumers Union, et al.

Cox Communications, Inc.

Donahue, Hugh Carter; Ferrigno-Stack, Josephine; O'Donnell, Shawn

EarthLink, Inc.

Excite@Home Corporation

FCC LSGAC

Focal

Grande Communications

Heins, Stephen A.

Ilyin, Sergey

Insight Communications

Media Access Project

National Association of Telecommunications Officers & Advisors

National Cable & Telecommunications Association

OpenNet Coalition

Qwest Communications International, Inc.

SBC Telecommunications, Inc.

State of California Public Utility Commission

US Internet Industry Association

United States Telecom Association

Worldcom

**SEPARATE STATEMENT OF CHAIRMAN MICHAEL K. POWELL**

Re: Inquiry Concerning High-Speed Access on the Internet Over Cable and
Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate
Regulatory Treatment for Broadband Access to the Internet over Cable
Facilities, GN Docket 00-185.

**I. Introduction**

One might ask what is in a name? In the law, a great deal. When Congress
crafts legislation it defines the rights, responsibilities and
obligations by reference to particular definitions or classifications.
In the multifaceted world of communications it has defined the rights
and obligations differently, depending on the nature of the service
offered without regard to the means in which it is offered.

Thus, the Commission has an inescapable duty to determine the will of
Congress by faithfully applying these definitions to new services. This
is not an easy task, given all communication services have some similar
and overlapping features.

**II. There Are Three Statutory Classifications**

For our purposes, there are three essential regulatory definitions under
the statute, each having different regulatory consequences:
"Telecommunications service" is defined in 47 U.S.C. § 153(46). "Cable
service" is defined in Section 602(6). And "information service" is
defined in the United States Code in Section 153(20).

If one looks throughout the statute, one will see clearly that Congress
ascribed different regulatory treatment to these classifications --
sometimes more regulatory oversight, sometimes less. For example, a
cable service provider cannot be regulated as a common carrier pursuant
to the statute.[^402] Yet, as a consequence of the statute, a
telecommunications service provider is regulated as a common carrier.
Most importantly, "information service" is a conscious regulatory
classification under the statute. Not only is it defined, there are
specific references to it throughout the statute.

For example, the Commission under its discretion can extend universal
service obligations to providers that *use* telecommunications who are
*not* telecommunications carriers (who must contribute to universal
service). This indicates Congress recognized classes of services, other
than telecommunications service that may have to be reached by
Commission discretion, rather than mandatory application under the
statute. Similarly, the schools and libraries provisions make specific
reference to information services as being covered by the provision,
entitling schools and libraries to discounted service. Or, one can look
at the network sharing provision of Section 259 and see specific
reference to information service as well as telecommunication services.

## The Classification Is Not An Exercise In Regulatory Free Will

The Commission does not have unconstrained discretion to pick its
preferred definition or classification, as some imply. The Commission
must attempt to faithfully apply the statutory definition to a service,
based on the nature of the service, including the technology used and
its capabilities, and the nature of the interactive experience for the
consumer. This "is complex and subject to considerable debate and . . .
appropriately left to the expertise of the FCC." [^403]

The Commission is not permitted to look at the consequences of different
definitions and then choose the label that comports with its preferred
regulatory treatment. That would be contrary to law. The Commission must
apply the definition and then accept the regulatory regime that adheres
to that classification and that which Congress chose when it adopted the
statute.

## IV. Commission Is Not Neutered By This Classification {#iv.-commission-is-not-neutered-by-this-classification .unnumbered}

The Commission is not left powerless to protect the public interest by
classifying cable modem service as an information service. Congress
invested the Commission with ample authority under Title I. That
provision has been invoked consistently by the Commission to guard
against public interest harms and anti-competitive results.

It was this Commission that promulgated *Computer I, Computer II and,*

*Computer III,* (all under Title I) in an effort to protect against
public interest harms, all with the blessing of judicial review and
court sanction of its ancillary authority. Additionally, Title VI is a
direct progeny of the Commission's assertion of jurisdiction over cable
services under its Title I authority and has regulated cable extensively
for a number of years under that authority. This exercise, too, was
approved by the Supreme Court as within the congressional scheme.[^404]

There is no basis to conclude that Title I is inadequate to strike the
right regulatory balance. The Commission's willingness to ask searching
questions about competitive access, universal service and other
important policy issues demonstrates its commitment to explore, evaluate
and make responsible judgments about the regulatory framework.

SEPARATE STATEMENT OF COMMISSIONER KATHLEEN Q. ABERNATHY

*Re: Inquiry Concerning High-Speed Access to the Internet Over Cable and
Other Facilities; Internet Over Cable Declaratory Ruling Proceeding;
Appropriate Regulatory Treatment for Broadband Access to the Internet
Over Cable Facilities*, GN Docket 00-185.

The declaratory ruling we adopt today provides the long-awaited answer
to a pivotal question: What is the appropriate regulatory classification
of cable modem service? I am pleased that this item will end the
regulatory uncertainty that has led to divergent interpretations of the
Act by the courts of appeals and that may well have hampered the
deployment of cable modem facilities and the introduction of these
services to consumers. I commend the Cable Services Bureau and my fellow
commissioners for developing an analytical framework that not only
represents the best reading of the Act but also serves important public
policy objectives. Classifying cable modem service as an information
service will promote our goal of fostering a "minimal regulatory
environment that promotes investment and innovation in a competitive
market."[^405] It also provides the opportunity to create a more
consistent regulatory framework across technological platforms.

As we have done in the *Wireline Broadband NPRM*, I believe it is
important to seek comment on the appropriateness of wholesale access
obligations. It may turn out that marketplace developments concerning
multiple ISP access will make regulatory intervention unnecessary. Most
of the factors that cable operators had formerly cited as impediments to
offering consumers a choice of ISPs --- exclusive contracts with
affiliated ISPs and technical feasibility concerns, for example ---
appear to have been resolved. Accordingly, in addition to AOL Time
Warner, which offers a choice of ISPs pursuant to merger conditions
imposed by the Federal Trade Commission, Comcast and AT&T Broadband have
announced agreements under which they will provide consumers with a
choice of ISPs, and Cox is conducting technical trials. I also hope that
the declaratory ruling we adopt today will provide a blueprint for cable
operators that seek to negotiate additional access arrangements with
independent ISPs. By establishing that cable operators may enter into
access arrangements with independent ISPs on a private carriage basis,
our ruling makes clear that cable operators can provide choice without
necessarily subjecting themselves to common carrier regulation.

Overall, however, while these marketplace developments and our
clarification of the legal regime provide a basis for optimism, I remain
concerned that some cable operators may continue to offer consumers only
a single brand of ISP service or that cable operators generally may
offer only two or three options. As the owners of the nation's most
extensive broadband architecture and as the leading providers of
broadband service, cable operators have the potential to suppress
competition. I believe that the Commission should not yet dismiss
proposals to impose some kind of access requirement without better
evidence that robust competition among broadband ISPs will develop on
its own.

The interrelation of this proceeding and the *Wireline Broadband NPRM*
is a critical part of my decision to seek further comment on whether to
impose an access obligation on providers of cable modem service. Cable
modem and DSL providers appear to be competing in a converged broadband
marketplace, yet DSL providers alone are subject to a series of
unbundling and nondiscrimination requirements under *Computer II/III*. I
therefore believe that it would be inappropriate for the Commission not
even to *consider* imposing access obligations on cable operators. I
recognize that there are substantial differences in the historical
treatment of wireline common carriers and cable operators, and that it
may not be appropriate or even within our statutory authority to seek
complete parity in our regulatory treatment of broadband services
provided over the wireline and cable platforms.[^406] Nevertheless, we
are faced with a single overarching question with respect to each
service: What is the appropriate role for the Commission in ensuring
that consumers receive the benefits of competition and choice? If the
Commission decides to maintain some form of access obligation at the
conclusion of the *Wireline Broadband* proceeding, we would need to
develop a compelling rationale if we were to refrain from imposing an
analogous requirement on cable operators.

Finally, I am pleased that the Commission has decided to tackle the
challenging questions relating to state and local jurisdiction over
cable modem services. We must balance the legitimate role of local
franchising authorities in managing rights-of-way against the risk that
excessive regulation will hamper efforts by cable operators to upgrade
plant and roll out new broadband services. I believe that our state and
local colleagues have no desire to erect regulatory barriers that would
thwart our efforts to "encourage the deployment on a reasonable and
timely basis of advanced telecommunications capability to all
Americans."[^407] I look forward to working closely with local
franchising authorities and their representative associations so that we
can cooperatively establish appropriate guidelines for right-of-way
management.

DISSENTING STATEMENT

OF COMMISSIONER MICHAEL J. COPPS

*In the Matter of Inquiry Concerning High-Speed Access to the Internet*

*Over Cable and Other Facilities*

*Internet Over Cable Declaratory Order Proceeding*

*Appropriate Regulatory Treatment for Broadband Access to the Internet
Over Cable Facilities*,

*GN Docket 00-185*

Just one month ago, the Commission adopted a Notice of Proposed
Rulemaking regarding the classification of broadband services delivered
by wireline providers ("*Wireline Broadband NPRM"*). I dissented from
that Notice and expressed concern that some might read that *Notice* and
conclude that the Commission had a predetermined agenda to deregulate
dominant providers in the market. The spate of newspaper stories and
magazine articles in the intervening month bears out the concern that I
expressed. Many analysts and observers have concluded exactly that.
Today, I am afraid the Commission reinforces these conclusions. After
just four weeks, and before comments have even been received in the
*Wireline Broadband* proceeding, we embark on a very similar path for
cable modem services, only this time we leapfrog from a generalized
Notice of Inquiry to an extraordinarily far-reaching Declaratory Ruling.

I cannot support either the timing of the Declaratory Ruling or its
conclusions, which create dangerous uncertainty in the growing market
for cable broadband services. I sympathize with the concerns of cable
system operators, local franchising authorities, and others about the
lack of regulatory clarity in this area. But this Declaratory Ruling
does not provide the certainty sought by these entities, instead placing
cable modem services into the regulatory uncertainty of Title I.

The decision the Commission will make today strays far afield from the
regulatory construct established by Congress. Congress provided
statutory frameworks for cable and for telecommunications carriers under
Title VI and Title II, respectively. The statute makes clear that, to
the extent that a cable operator serves as a common carrier subject to
the provisions of Title II, the regulations prescribed by Title VI do
not apply. Similarly, a telecommunications carrier generally regulated
under Title II is subject to the obligations in Title VI to the extent
it is providing a cable service. So the statutory provisions accommodate
cable system operators' delivery of new or hybrid services, even where
those services may not fit neatly into the existing regulatory
classifications. For example, there is widespread agreement that
telephony provided over the cable plant is subject to Title II
regulation. A powerful case has been made that cable modem services
should also be subject to Title II.

Video services provided over the telephone system are subject to Title
VI. Were cable modem services similarly subject to Title VI, provisions
governing general franchising authority, the ability of local
authorities to assess franchise fees, and the cap on such fees would
continue to apply.

But under the classification scheme adopted today, the categorizations
become much more difficult. For example, is IP telephony subject to
Title II as is cable telephony, or Title I, as is cable modem service?
Is video streaming over cable modem service subject to Title VI as are
traditional video services delivered by cable systems, or is that too
now subject to the vagaries of Title I?

The Ruling will force cable modem services into the generally
deregulated information services category, subject only to the
Commission's ancillary jurisdiction of Title I. I cannot conceive that
Congress intended to remove from its statutory framework core
communications services such as the one at issue in this proceeding. I
cannot imagine that it envisioned its statutory handiwork being made
obsolete by a new service offering.

But make no mistake -- today's decision places these services outside
any viable and predictable regulatory framework. First, it concludes
that, as a statutory matter, cable modem services are not cable
services. Next, it concludes that cable operators providing cable modem
services over their own facilities are not offering telecommunications
services because subscribers are purchasing only information services.
This is the same forced analysis the Commission tentatively reached in
the *Wireline Broadband NPRM.* Those who conclude that the Commission
has now resolved that particular proceeding after just one month may be
pardoned.

Next, the Commission addresses the situation in which a cable operator
offers its cable modem service as an input provided to an unaffiliated
ISP. Although the decision concludes that the record provides
insufficient information to determine whether cable operators are
offering pure transmission services to ISPs, the majority determines --
with scant analysis -- that it expects that any cable operators that
offer pure telecommunications in the future would be offering only
private carriage. Doesn't insufficient information mean that the
Commission should refrain from broad pronouncements until it can acquire
the necessary data?

Finally, the Commission dismisses out of hand the argument raised in the
record that the Commission's current rules by their terms require cable
operators to offer access to unaffiliated Internet providers. These
rules require carriers that offer transmission capacity using wire or
radio to offer transmission services to competing information service
providers.[^408] This policy has been key to the development of a
competitive information services market. The Ruling, however, concludes
with scant analysis that these access requirements only apply to
wireline telephone companies.

The Ruling seems uneasy with its own conclusions. Just in case we are
wrong, and access requirements *were* to apply, they are waived, on the
Commission's own motion, with neither notice nor comment. And if even
***that*** stretch somehow fails to get the point across, the *NPRM*
adopted today also takes steps to ensure that these services remain
deregulated in the face of any court opinion to the contrary. Even if
cable modem services are found by the courts to be subject to
regulation, the Commission would forbear from enforcing those
obligations. So, in this analysis the majority makes a determination,
but just in case it got the determination wrong, it waives the rule it
determined did not apply, and, should the courts disagree, we simply
forbear from enforcing the rule. That's a far distance down the road
from the simple NOI we are working from, isn't it?

Once the Ruling has reached its desired result to remove these services
from regulatory requirements, we are then told not to worry -- the
Commission can build its own regulatory framework under its ancillary
jurisdiction. Years ago, when I worked on Capitol Hill, we used to worry
about legislation on an appropriations bill. Down here, I'm learning
that I have to look out for legislation on an NPRM.

The NPRM adopted by the Commission today raises the further question --
also addressed in a tentative conclusion in the *Wireline Broadband NPRM
--* as to whether cable modem services should be subject to an access
requirement. The majority notes that certain cable system operators have
recently begun to enter into carriage agreements with unaffiliated ISPs.
While this progress is worth noting, I would also note that such
agreements are quite new, are generally limited to the largest cable
systems, and are generally offered to only one or two unaffiliated ISPs.
Thus, while there has been some promising movement in the direction of
multiple ISP access, the progress has been slow and the course is far
from set. The effect of this deliberate pace has been to deny many
consumers access to more than one ISP -- a circumstance that recently
proved a near-disaster when the one ISP carried by some of the nation's
largest cable systems abruptly closed its doors.

I am pleased that the majority recognizes in theory the ability of the
Commission to impose an access requirement even under its reading of the
statute. I am not, however, sanguine that we will ever get there in
practice. I do believe that *some* access requirement is necessary in
order to ensure that consumers have choices of ISPs. It strikes me as
ironic that without such a requirement the Internet -- which grew up on
openness -- may become the province of dominant carriers, able to limit
access to their system to all but their own ISPs. I would like to hear
from a multiplicity of stakeholders what they believe the nature of a
multiple ISP requirement should be, how it could be implemented, and
what other regulatory or public interest implications would accompany
the imposition of such a requirement.

Today we take a gigantic leap down the road of removing core
communications services from the statutory frameworks established by
Congress, substituting our own judgment for that of Congress and playing
a game of regulatory musical chairs by moving technologies and services
from one statutory definition to another. Last month I remarked that in
our *Wireline Broadband* proceeding, we were out-driving the range of
our headlights. Today I think we are out-flying the range of our most
advanced radar.

Let me repeat my serious misgivings about not just the propriety, but
the wisdom of the Commission proceeding directly from a general Notice
of Inquiry to the adoption of such far-reaching conclusions in so
important an area of national policy. How America deploys broadband is
the central infrastructure challenge our country faces. It is a public
policy matter of enormous implications. How we get it done affects not
only how many megabytes of information our computers can download, but
what kinds of options consumers will be able to choose from, what kinds
of protections they will have against misguided or fraudulent business
practices, and what kinds of opportunities will be available to those in
our society who do not share fully in our general prosperity. With so
much at stake, I would have hoped for a little more modesty and measured
pace on our part.

[^1]: For purposes of this proceeding, we use the definition of the
    Internet that has been adopted by the Federal Networking Council:
    "'Internet' refers to the global information system that \-- (i) is
    logically linked together by a globally unique address space based
    on the Internet Protocol (IP) or its subsequent
    extensions/follow-ons; (ii) is able to support communications using
    the Transmission Control Protocol/Internet Protocol (TCP/IP) suite
    or its subsequent extensions/follow-ons, and/or other IP-compatible
    protocols; and (iii) provides, uses or makes accessible, either
    publicly or privately, high level services layered on the
    communications and related infrastructure described herein." *See
    FNC Resolution: Definition of 'Internet*,*' available at*
    http://www.itrd.gov/fnc/ Internet_res.html, visited Jan. 22, 2002.
    Statutory definitions of the Internet are in Communications Act §
    230(f)(1), 47 U.S.C. § 230(f)(1) ("the international computer
    network of both Federal and non-Federal interoperable packet
    switched data networks\") and Communications Act § 231(e)(3), 47
    U.S.C. § 231(e)(3) ("the combination of computer facilities and
    electromagnetic transmission media, and related equipment and
    software, comprising the interconnected worldwide network of
    computer networks that employ the Transmission Control
    Protocol/Internet Protocol or any successor protocol to transmit the
    information.").

[^2]: We have observed that "Internet access services . . . alter the
    format of information through computer processing applications such
    as protocol conversion and interaction with stored data." *See*
    *Federal-State Joint Board on Universal Service*, CC Docket No.
    96-45, Report to Congress ("*Universal Service Report*"), 13 FCC Rcd
    11501, 11516-17 ¶ 33 (1998) (citations and internal quotations
    omitted). We note that, for purposes of Section 231 ("Restriction of
    Access by Minors to Materials Commercially Distributed by Means of
    World Wide Web That Are Harmful to Minors\") of the 1996 Act
    (*infra* note Error: Reference source not found), Congress has
    defined the term "Internet access service" to mean: "a service that
    enables users to access content, information, electronic mail, and
    other services offered over the Internet, and may also include
    access to proprietary content, information, and other services as
    part of a package of services offered to consumers. Such term does
    not include telecommunications services.\" 47 U.S.C. § 231(e)(4). We
    presume that the last sentence is intended to clarify that section
    231 was not intended to impair our or a state commission\'s ability
    to regulate basic telecommunications services. *See* H.R. Rep.
    105-570(I) at \*20. We also note that litigation concerning the
    constitutionality of section 231 is underway (*e.g., ACLU v. Reno*,
    217 F.3d 162 (3d Cir. 2000), *cert. granted*, 121 S. Ct. 1997
    (2001)), but does not concern the definition of Internet access
    service. The same definition appears in sections 1101(e)(3)(D) and
    1104(5) of the Internet Tax Freedom Act, Pub. L. No. 105-277, Div.
    C, Title XI, §§ 1100-1104, 112 Stat. 2681-719 (1998), 47 U.S.C. §
    151 note ("Internet Tax Freedom Act").

    We have defined "high-speed" Internet access in general as a service
    that "enables consumers to communicate over the Internet at speeds
    that are many times faster than the speeds offered through dial‑up
    telephone connections" and that enables subscribers to "send and
    view content with little or no transmission delay, utilize
    sophisticated 'real‑time' applications, and take advantage of other
    high‑bandwidth services." *See Applications for Consent to the
    Transfer of Control of Licenses and Section 214 Authorizations by
    Time Warner Inc. and America Online, Inc., Transferors, to AOL Time
    Warner Inc., Transferee*, CS Docket No. 00-30, Memorandum Opinion
    and Order ("*FCC AOL Time Warner Merger Order*"), 16 FCC Rcd 6547,
    6572 ¶ 63 (2001). *See also id.*, 6572 ¶ 64, 6574-77 ¶¶ 69-73.

[^3]: *See* Richard Bilotti, Benjamin Swinburne, and Megan Lynch*,
    Industry Overview: The Marquis de Broadbandbury - Parte Deux*,
    Morgan Stanley Dean Witter (\"*Morgan Stanley July 2001 Report*\"),
    July 3, 2001, at 46.

[^4]: 47 U.S.C. §§ 151 *et seq.*

[^5]: We do not intend this proceeding to affect high-speed Internet
    access provided by facilities licensed in Multipoint Distribution
    Service, Multichannel Multipoint Distribution Service, Local
    Multipoint Distribution Service, Satellite Master Antenna Television
    Systems, or other primarily wireless technologies. Also, we are
    aware of offerings of high-speed Internet access that are targeted
    at businesses, including small ones. *See, e.g.,* Comcast Corp.,
    Broadband Commuter Service, *available at*
    http://www.comcastbusiness. com/pdf/Broadband_Commuter \_Service.pdf
    (visited Feb. 11, 2002). We are not considering those offerings in
    this proceeding.

[^6]: *See Inquiry Concerning the Deployment of Advanced
    Telecommunications Capability to All Americans in a Reasonable and
    Timely Fashion, and Possible Steps To Accelerate Such Deployment
    Pursuant to Section 706 of the Telecommunications Act of 1996*, CC
    Docket No. 98-146, Notice of Inquiry, 13 FCC Rcd 15280, 15308-11 ¶¶
    77-82 (1998). *See also* *Inquiry Concerning the Deployment of
    Advanced Telecommunications Capability to All Americans in a
    Reasonable and Timely Fashion, and Possible Steps To Accelerate Such
    Deployment Pursuant to Section 706 of the Telecommunications Act of
    1996*, CC Docket No. 98-146, Report ("*First 706 Report*"), 14 FCC
    Rcd 2398, 2449 ¶¶ 100-01 (1999).

[^7]: *Internet Ventures, Inc., Internet On-Ramp, Inc.,* Petition for
    Declaratory Ruling that Internet Service Providers are Entitled to
    Leased Access to Cable Facilities Under Section 612 of the
    Communications Act, File No. CSR-5407-L, Memorandum Opinion and
    Order ("*Internet Ventures*"), 15 FCC Rcd 3247 (2000).

[^8]: *See FCC AOL Time Warner Merger Order*, 16 FCC Rcd at 6588-92 ¶¶
    93-100 (prohibiting specific kinds of discrimination against
    unaffiliated Internet service providers ("ISPs"), their first
    screens, their content, and the quality of service afforded to
    them); *America Online, Inc., and Time Warner, Inc.*, Federal Trade
    Commission, Docket No. C-3989, File No. 001 0105, Decision and Order
    ("*FTC AOL Time Warner Merger Order*"), §§ II, III (Dec. 14, 2000)
    (requiring access for a small number of unaffiliated ISPs and
    prohibiting interference with the content of unaffiliated ISPs and
    discrimination against the content of unaffiliated ISPs);
    *Applications for Consent to the Transfer of Control of Licenses and
    Section 214 Authorizations from MediaOne Group, Inc., Transferor to
    AT&T Corp., Transferee*, CS Docket No. 99-251, Memorandum Opinion
    and Order ("*AT&T-MediaOne Merger Order*"), 15 FCC Rcd 9816, 9869-73
    ¶¶ 120-28 (2000) (noting AT&T commitment to provide unaffiliated
    ISPs with access to its cable systems, and the Department of Justice
    consent decree requiring AT&T to divest MediaOne's ownership of Road
    Runner and to seek DOJ approval before entering into certain types
    of agreements with Time Warner or AOL relating to the provision of
    high-speed Internet access services); *Applications for Consent to
    the Transfer of Control of Licenses and Section 214 Authorizations
    from Tele-Communications, Inc., Transferor to AT&T Corp.,
    Transferee*, CS Docket No. 98-178, Memorandum Opinion and Order
    ("*AT&T-TCI Merger Order"*), 14 FCC Rcd 3160, 3205-07 ¶¶ 93-96
    (1999) (no requirement imposed).

[^9]: *See* Cable Services Bureau, *Broadband Today: A Staff Report to
    William E. Kennard, Chairman, Federal Communications Commission*,
    Oct. 1999; Barbara Esbin*, Internet Over Cable: Defining the Future
    in Terms of the Past* (OPP Working Paper Series No. 30, 1998); Kevin
    Werbach, *Digital Tornado: The Internet and Telecommunications
    Policy* (OPP Working Paper Series No. 29, 1997) ("*Werbach Paper*").
    In addition, local franchising authorities, the Department of
    Justice, and the Federal Trade Commission have also studied the
    issue carefully. *See* City of Fresno City Manager's Office, *Report
    to Council on AT&T / MediaOne Merger - Open Access* (May 11, 2000);
    King County Expert Review Panel, *Applying a Policy of
    Non-Discriminatory Access to High-Speed Internet Access Over Cable
    in King County, Washington* (Oct. 1999); City of Los Angeles Info.
    Tech. Agency, *Broadband Access Report* ("*Los Angeles Report*")
    (June 1999); Sacramento Metro. Cable Tele. Comm'n, *Cable Modem and
    Internet Services - Open Net / Forced Access* (Nov. 4, 1999); County
    of San Diego Cable Tele. Review Comm'n Staff*, Broadband Internet
    Open Access Report and Recommendations* (Sept. 13, 1999); City and
    County of San Francisco Dep't of Telecommun. and Info. Services,
    *Open Access Report* ("*San Francisco Report*") (Jan. 14, 2000).
    With the exception of San Francisco and Los Angeles, all of the
    local franchising authorities adopted recommendations not to impose
    an access requirement at this time. The *San Francisco Report*
    recommended a multiple ISP access requirement, but the
    recommendation was subsequently abandoned by the San Francisco Board
    of Supervisors following the Ninth Circuit's *Portland* decision.
    *See* City and County of San Francisco Reply Comments at 3-4; CCTA
    Reply Comments at 7; *AT&T Corp. v. City of Portland*
    ("*Portland*"), 216 F.3d 871 (9^th^ Cir. 2000), *reversing* 43 F.
    Supp. 2d 1146 (D. Ore. 1999). The Los Angeles City Council passed a
    resolution directing the Los Angeles City Attorney to urge the
    federal government to adopt an access requirement for all cable
    operators nationwide despite the *Los Angeles Report's*
    recommendation not to impose an access requirement at the time it
    was released. *See* Letter from Edward J. Perez, City of Los
    Angeles, to Magalie Roman Salas, Secretary, FCC, (Mar. 13, 2001).
    *See also* *FTC AOL Time Warner Merger Order, supra* note Error:
    Reference source not found; *United States v. AT&T Corp. and
    MediaOne Group, Inc*., Case No. 1:00CV01176, Final Judgement
    (D.D.C., filed May 25, 2000), *available at*
    http://www.usdoj.gov/atr/cases/f4800/4841.htm (visited Jan. 24,
    2002).

[^10]: *See Inquiry Concerning the Deployment of Advanced
    Telecommunications Capability to All Americans in a Reasonable and
    Timely Fashion, and Possible Steps To Accelerate Such Deployment
    Pursuant to Section 706 of the Telecommunications Act of 1996*, CC
    Docket No. 98-146, Second Report ("*Second 706 Report*"), 15 FCC Rcd
    20913, 20918 ¶ 8 (2000); *First 706 Report*; 14 FCC Rcd at 2402 ¶¶
    6-7 (both reports finding that deployment of advanced
    telecommunications capability on the whole appears reasonable and
    timely). *See also National Cable & Telecommun. Ass'n v. Gulf Power
    Co*., 122 S. Ct. 782, 788 (2002) ("*Gulf Power*") (noting "that the
    FCC . . . has not yet categorized Internet service.").

[^11]: *Inquiry Concerning High-Speed Access to the Internet Over Cable
    and Other Facilities*, GN Docket No. 00-185, Notice of Inquiry
    ("*Notice*"), 15 FCC Rcd 19287 (2000).

[^12]: *Appropriate Framework for Broadband Access to the Internet Over
    Wireline Facilities*, *Universal Service Obligations of Broadband
    Providers*, CC Docket No. 02-33, Notice of Proposed Rulemaking
    (\"*Wireline Broadband NPRM*\") ¶ 3 (rel. Feb. 15, 2002).

[^13]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
    (1996) ("1996 Act").

[^14]: *See* Pub. L. No. 104-104, Title VII, § 706, Feb. 8, 1996, 110
    Stat. 153, reproduced in the notes under 47 U.S.C. § 157 ("Section
    706"). Section 706 defines "advanced telecommunications capability"
    "without regard to any transmission media or technology, as
    high-speed, switched, broadband telecommunications capability that
    enables users to originate and receive high-quality voice, data,
    graphics, and video telecommunications using any technology." *Id.*
    We have noted that our definition of "advanced telecommunications
    capability" will evolve over time. *See First 706 Report*, 14 FCC
    Rcd at 2407-08 ¶ 25; *Second 706 Report*, 15 FCC Rcd at 20921 ¶ 14.

[^15]: *See* Communications Act § 230(b)(2), 47 U.S.C. § 230(b)(2).

[^16]: *See Wireline Broadband NPRM, supra* note Error: Reference source
    not found, ¶ 5.

[^17]: *See id., supra* note Error: Reference source not found*.*

[^18]: NTIA & Economics and Statistics Administration, US Department of
    Commerce, *A Nation Online: How Americans are Expanding Their Use of
    the Internet*, Feb. 5, 2002, at 5; *see also* *Inquiry Concerning
    the Deployment of Advanced Telecommunications Capability to All
    Americans in a Reasonable and Timely Fashion, and Possible Steps To
    Accelerate Such Deployment Pursuant to Section 706 of the
    Telecommunications Act of 1996*, CC Docket No. 98-146, Third Report
    ("*Third 706 Report*"), FCC 02-33 (rel. Feb. 6, 2002) ¶ 63.

[^19]: We use the term "narrowband" here to refer to Internet access
    service that is designed to operate at speeds of less than 200
    kilobits-per-second ("Kbps") in both directions. *See Second 706
    Report*, 15 FCC Rcd 20913, 20917 ¶¶ 8, 10, 12; *see also Third 706
    Report*, FCC 02-33, ¶¶ 7, 9, and 11. The most common form of
    narrowband Internet access service is provided over traditional
    telephone lines (also known as "dial-up"), which currently allows
    for the transfer of data at speeds up to 56 Kbps. *See FCC AOL Time
    Warner Merger Order*, 16 FCC Rcd 6547, 6551 ¶ 8, n.11.

[^20]: *See Wireline Broadband NPRM, supra* note Error: Reference source
    not found, ¶ 1 n.2; *supra* note Error: Reference source not found.

[^21]: Residential Internet access services are discussed more fully in
    the *FCC* *AOL Time Warner Merger Order*. *See FCC AOL Time Warner
    Merger Order*, 16 FCC Rcd 6547, 6568, 6571-74 ¶¶ 53, 62-67.

[^22]: *See Third 706 Report*, FCC 02-33, ¶¶ 21-24.

[^23]: *See Second 706 Report*, 15 FCC Rcd 20913, 20922, 20928-38,
    20942-43 ¶¶ 16, 29-59, 71-72; *see also Third 706 Report*, FCC
    02-33, ¶¶ 24-26.

[^24]: *See* Morgan Stanley Dean Witter and Yankee Group Study, July
    2001; Information Technology Association of America, *Building a
    Positive, Competitive Broadband Agenda: Positively Broadband*, White
    Paper (Oct., 2001) at http://www.postivelybroadband.org (visited
    Dec. 20, 2001); *Morgan Stanley July 2001 Report*, at 46; *Third 706
    Report*, FCC 02-33, ¶ 61. Availability figures are based on the
    availability of wireline services (cable and DSL). Satellite is
    available to any household with a clear southern view, but is
    subject to propagation delay (delay in the transmission of signals
    that results from the time it takes the signals to travel between
    the satellites and earth stations or the end user), and is available
    at a higher cost than wireline services. The Commission estimates
    that as of June 30, 2001, about 7.8 million households subscribed to
    high-speed services. *Third 706 Report*, FCC 02-33, ¶ 7.

[^25]: As a result of its Form 477 survey, the Commission has found that
    in 20.3% of zip codes in the U.S., there are subscribers to only one
    high-speed access provider, and 22.2% of zip codes have no
    subscribers to high-speed access providers at all. *Third 706
    Report*, FCC 02-33, Appendix C, Table 9. These data, based on the
    latest Form 477 survey, measured the presence of at least one
    subscriber to high-speed access providers, not the actual
    availability of such providers. Thus multiple high-speed access
    providers may be available in a much higher percentage of zip codes,
    but not have any subscribers in those zip codes. In addition this
    survey did not measure the number of subscribers in each zip code.
    Therefore, these figures do not measure the distribution of
    population in these zip codes, but it is likely that more high-speed
    access providers are available in areas with higher population
    densities. *See Second 706 Report*, 15 FCC Rcd 20913, 20994-21003 ¶¶
    213-243; *see also Third 706 Report*, FCC 02-33, ¶¶ 17-26.

[^26]: *See* Kinetic Strategies, Inc., *Cable Modem Market Stats &
    Projections (December 21, 2001)*, [Cable Datacom News,]{.smallcaps}
    at http://www.cabledatacomnews.com/cmic/cmic16.html (visited Jan.
    23, 2002).

[^27]: *Id.* Generally, unless we state otherwise, our references to
    "DSL" throughout this Order refer to asymmetric DSL ("ADSL").
    Asymmetric DSL is the most common variant of DSL used by residential
    subscribers, and is available at various speeds ranging up to 6.1
    mbps downstream and 640 Kbps upstream. *See Second 706 Report*, 15
    FCC Rcd 20913, 20930, 20934 ¶¶ 36, 47. Currently, at lowest cost,
    ADSL service usually provides transmission at 384-640 Kbps
    downstream and 90-128 Kbps upstream.

[^28]: Kagan World Media, *MMDS Sub Base*, Broadband Fixed Wireless,
    Sept. 30, 2001, at 4; *2-Way Satellite Internet Access Poised For
    Growth*, [Comm. Daily]{.smallcaps}, Jan. 11, 2002.

[^29]: *See* Stephen Lawson, IDG News Service, *SBC Pares Back Its DSL
    Efforts*, [PCWorld.Com]{.smallcaps}, Oct. 23, 2001, at
    http://www.pcworld.com/news/article/0,aid,67606,00.asp (visited Jan.
    23, 2002); Kinetic Strategies, Inc., *Broadband Providers Boost
    Prices: Verizon, BellSouth and EarthLink Join SBC in Raising
    Consumer DSL Prices, AT&T and Charter Lift Cable Modem Rates*,
    [Cable Datacom News,]{.smallcaps} June 1, 2001, at
    http://www.cabledatacomnews.com/jun01/jun01-5.html (visited Jan. 23,
    2002). While SBC has scaled back its efforts to deploy DSL, Bell
    South continues to advance its deployment efforts successfully.
    [Comm. Daily]{.smallcaps}, Jan 10, 2002, at 14.

[^30]: *See* Letter from Alexandra M. Wilson, Chief Policy Counsel, Cox
    Communications, Inc., to W. Kenneth Ferree, Chief, Cable Services
    Bureau, FCC, at 4-5, transmitted by letter from To-Quyen Truong,
    Counsel for Cox Communications, Inc., to Magalie Roman Salas,
    Secretary, FCC (Aug. 15, 2001) ("Cox Aug. 15, 2001 Ex Parte").

[^31]: *See Bova v. Cox Communications, Inc.*, Cox Communications, Inc.
    and CoxCom, Inc., Statement of Facts, Civil Action No. 7:01 CV 00090
    (W.D. Va.) (filed Sept. 19, 2001) ("*Bova Statement of Facts*") at
    4.

[^32]: "E-mail" or "electronic mail" refers to the transmission of
    electronic messages over [communications](../communications.html)
    [networks](../network.html). These messages can be entered from a
    [keyboard](../keyboard.html) or through electronic
    [files](../file.html) [stored](../store.html) on a
    [disk](../disk.html). Most e-mail systems include a [text
    editor](../editor.html) for composing messages. A user sends the
    message to the recipient by specifying the recipient\'s domain-based
    address, *i.e.,* jsmith@abcd.com. Sent messages are stored in
    electronic [mailboxes](../mailbox.html) until retrieved by the
    recipient. *See* Webopedia, *E-mail - Definition*, at
    http://www.webopedia.com/TERM/e/e_mail.html (visited Jan. 9, 2002);
    [Newton's Telecom Dictionary 247]{.smallcaps} (17^th^ ed. 2001).
    Simple Mail Transfer Protocol ("SMTP") is the message exchange
    standard for the Internet. It is familiar to most people by its
    addressing scheme - the <username@company.com> scheme. SMTP provides
    the very important function of moving messages from one email server
    to another. It works in conjunction with Post Office Protocol
    ("POP"), which is a mail server protocol that provides an incoming
    and outgoing message server and storage system. POP receives mail
    and holds it in a user's post office mailbox while SMTP provides
    message transport services. *See* [McGraw Hill Encyclopedia of
    Networking & Telecommunications]{.smallcaps} 438 (2001)*.*

[^33]: A "newsgroup" or "news group" is an on-line forum or discussion
    group whereby users view and post messages using a [news
    reader](../news_reader.html), a computer program that connects the
    user to a server on the Internet that stores the posted messages for
    the group. Each newsgroup usually focuses on a specific topic, and
    newsgroups cover a vast array of topics. *See* Webopedia,
    *Newsgroup - Definition*, at
    http://www.webopedia.com/TERM/n/newsgroup.html (visited Jan. 9,
    2002). Physically, the newsgroup consists of the computer files that
    contain the conversation elements to the discussions currently in
    progress about each agreed upon topic. Cable operators or ISPs get
    their newsgroups from different news-feeds (or "newsfeeds"), or news
    sources, by transferring them over the Internet or other networks.
    *See* [Newton's Telecom Dictionary 475]{.smallcaps} (17^th^ ed.
    2001).

[^34]: The cable modem service provider typically offers a finite amount
    of storage capacity on one of its local servers to host, *i.e.*
    store and provide access via the World Wide Web, the personal web
    pages of its subscribers. *See, e.g.,* Cox Aug. 15, 2001 Ex Parte;
    Letter from Darryl Cooper, Corporate Counsel, Excite@Home, to
    Magalie Roman Salas, Secretary, FCC (Aug. 17, 2001) ("Excite@Home
    Aug. 17, 2001 Ex Parte"); *Bova Statement of Facts*, *supra* note
    Error: Reference source not found, at 5.

[^35]: The "World Wide Web" is a [system](../system.html) of
    [Internet](../Internet.html) [servers](../server.html), *i.e.*,
    computers connected to the Internet, that [support](../support.html)
    [documents](../document.html) formatted in a
    [script](../script.html) called HyperText Markup Language ("HTML"),
    which supports links to other documents, as well as
    [graphics](../graphics.html), audio, and video
    [files](../file.html). This means that a user can move from one
    document to another simply by [clicking](../click.html) on [links
    contained in an HTML-formatted document](../hot_spot.html). Not all
    Internet servers are part of the World Wide Web. There are several
    [applications](../application.html) called [Web
    browsers](../browser.html) that make it easy to
    [access](../access.html) the World Wide Web; two of the most popular
    browsers are [Netscape Navigator](../Navigator.html) and
    [Microsoft\'s Internet Explorer](../Internet_Explorer.html). *See*
    Webopedia, *World Wide Web - Definition*, at
    http://www.webopedia.com/TERM/W/World_Wide_Web.html (visited Jan. 9,
    2002); Letter from Betsy J. Brady, Esq., Vice President, Federal
    Government Affairs, AT&T, to Magalie Roman Salas, Secretary, FCC
    (Dec. 15, 2000) ("AT&T Dec. 15, 2000 Ex Parte"), Attachment at 4.

[^36]: References to \"speed\" in this context actually refer to the
    transmission rates for data, *i.e.,* how many bits can be delivered
    per second, *e.g.*, megabits per second ("Mbps"). *See* [National
    Academy of Sciences]{.smallcaps}, [Broadband: Bringing Home the
    Bits]{.smallcaps} 65 (2002) ("*NAS Broadband Report*").

[^37]: *See* Comcast Reply Comments in the *2001 MVPD Competition
    Report*, at 7; *see also* Cox Comments at 10; *see also* Cablevision
    Systems Corp., *Optimum Online*, at http://www.optimumonline.com
    (visited Jan. 9, 2002). Under optimal conditions with DOCSIS ("Data
    Over Cable Service Interface Specification") 1.0, Internet access
    over cable infrastructure may support up to 38 Mbps downstream.
    Upstream channels may deliver 500 Kbps to 10 Mbps, depending on the
    amount of spectrum allocated and modulation technique used. However,
    because cable broadband network capacity is shared among users and
    because of hardware limitations, an individual cable modem
    subscriber may generally experience speeds from 500 Kbps to 1.5 Mbps
    \-- depending on the specific network architecture and traffic load.
    *See generally* Kinetic Strategies, Inc., *Overview of Cable Modem
    Technology and Services*, at
    http://www.cabledatacomnews.com/cmic/cmic1.html (visited Jan. 9,
    2002). DOCSIS is an open standard for data communications involving
    cable modems and cable systems. *See* CableLabs, *DOCSIS Project
    Primer*, at http://www.cablelabs.com/docsisprimer.html (visited Feb.
    20, 2002).

[^38]: "Real time" applications, such as live voice or video
    communications, are those communications where there is no perceived
    delay in their transmission, as the communication is being received
    perceptively at the same time it is transmitted. *See* [Newton's
    Telecom Dictionary]{.smallcaps} 572 (17^th^ ed. 2001).

[^39]: "Streaming video" refers to the transmission of packets over the
    Internet containing a video signal, which is viewable as it is
    transmitted and before the entire file is downloaded to the user's
    computer. *See* [Newton's Telecom Dictionary]{.smallcaps} 655
    (17^th^ ed. 2001). In the case of RealNetworks' streaming media, a
    song or video starts to play on a user's computer before the entire
    song or video file is downloaded. In other words, data continues to
    download while the song or video plays. No space is used on the
    user's computer's hard drive to store the song or video file. *See*
    [McGraw-Hill Illustrated Telecom Dictionary]{.smallcaps} 824 (2^nd^
    Ed. 2000).

[^40]: *See, e.g.,* Road Runner, *Best of Broadband -* *Media Runner:
    Instant Videos and Breaking Headlines* at
    http://rrcorp.central.rr.com/vm_media_runner01.asp (describing Road
    Runner's "Media Runner" streaming video feature) (visited Jan. 9,
    2002).

[^41]: An "Intranet" is a private network that is the equivalent of a
    "private Internet" reserved for those users who have the authority
    and passwords to access the network. *See* [Newton's Telecom
    Dictionary]{.smallcaps} 366 (17^th^ ed. 2001); *see also, e.g.,*
    Road Runner, *Residential Service: What is Road Runner?* at
    http://rrcorp.central.rr.com/hso/whatis.asp and *Residential
    Service: Features,* at
    http://rrcorp.central.rr.com/hso/explore_features.asp (describing
    Road Runner, a high-speed Internet access service) (visited Jan. 10,
    2002). Intranets house applications such as databases, user
    publishing, search vehicles, and administrative and management
    tools.

[^42]: *See, e.g.,* Road Runner, *Residential Service: What is Road
    Runner?* at http://rrcorp.central.rr.com/hso/whatis.asp and
    *Residential Service: Features,* at
    http://rrcorp.central.rr.com/hso/explore_features.asp (describing
    Road Runner, a high-speed Internet access service) (visited Jan. 10,
    2002).

[^43]: "Internet access providers," also referred to as ISPs, combine
    computer processing, information storage, protocol conversion, and
    routing with transmission to enable users to access Internet content
    and services. *See* *Universal Service Report*, 13 FCC Rcd at 11530
    ¶ 63 n.125; *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98-147, Order on
    Remand, 15 FCC Rcd 385 ¶ 34 (1999); *Implementation of the Local
    Competition Provisions in the Telecommunications Act of 1996;
    Intercarrier Compensation for ISP-Bound Traffic*, Declaratory Ruling
    in CC Docket No. 96-98 and Notice of Proposed Rulemaking in CC
    Docket No. 99-68, 14 FCC Rcd 3689, 3691 ¶ 4 (1999); *GTE Tel.
    Operating Cos., GTOC Tariff No. 1, GTOC Transmittal No. 1148*, CC
    Docket No. 98-79, Memorandum Opinion and Order ("*GTE ADSL*"), 13
    FCC Rcd 22466, 22468-9 ¶ 6 (1998), *recon. denied*; *Application of
    WorldCom, Inc. and MCI Communications Corporation for Transfer of
    Control of MCI Communications Corporation to WorldCom, Inc.*, CC
    Docket No. 97-211, Report and Order, 13 FCC Rcd 18025, 18104-05 ¶
    143 (1998). We recognize that this construction of the term ISP may
    become outdated as business models evolve. We do not intend to
    suggest that cable modem service providers, or other entities that
    provide services that go beyond those described above, could not be
    considered to be ISPs.

[^44]: *See, e.g.,* Road Runner, *Residential Service: What is Road
    Runner?* at http://rrcorp.central.rr.com/hso/whatis.asp and
    *Residential Service: Features,* at
    http://rrcorp.central.rr.com/hso/explore_features.asp (describing
    Road Runner, a high-speed Internet access service) (visited Jan. 10,
    2002).

[^45]: *See FCC AOL Time Warner Order*, 16 FCC Rcd at 6594 ¶¶ 105-106.
    We are not aware of any cable operator that prevents subscribers
    from reaching the content of their choice.

[^46]: A Uniform Resource Locator ("URL") "is the global
    [address](../address.html) for [documents](../document.html) and
    other [resources](../resource.html) on the [World Wide
    Web](../World_Wide_Web.html). The first part of the address
    indicates what protocol to use*, i.e.*, http, and the second part
    specifies the [IP address](../IP_address.html) or the [domain
    name](../domain_name.html) where the resource is located," *i.e.,*
    fcc.gov. *See* Webopedia, *URL Definition*, at
    http://www.webopedia.com/TERM/U/URL.html (visited Jan. 10, 2002).

[^47]: For example, AOL charges \$14.95 a month for its "Bring Your Own
    Access" service. Yahoo! and MSN Hotmail do not charge a fee for
    similar services. *See* America Online, *AOL Pricing Plans*, at
    http://www.aol.com/info/pricing.html (visited Jan. 9, 2002); Yahoo,
    *Yahoo! Terms of Service*, at http://docs.yahoo.com/info/terms/
    (visited Jan. 9, 2002); MSN, *Hotmail Information - Frequently Asked
    Questions* at http://www.msn.com (visited Jan. 9, 2002).

[^48]: Many cable systems had some "upstream" capability, *i.e.,*
    ability for the subscriber to transmit information back to the cable
    operator through the cable system, even before systems were upgraded
    to provide cable modem service, but this tended to be for simple,
    user-to-system messages, such as ordering pay-per-view programs.
    *See* CableLabs®, *DOCSIS Project Prime*r, at
    http://www.cablemodem.com/docsisprimer.html (visited Jan. 10, 2002).

[^49]: Newer cable systems, such as those constructed by overbuilders,
    generally are designed to provide an array of services, including
    advanced services such as cable modem service. These systems
    typically are constructed to modern specifications and can provide
    advanced services without additional upgrades. *See generally*
    Letter from Charles A. Rohe and D. Anthony Mastando, Counsel,
    Carolina BroadBand, Inc. to Magalie Roman Salas, Secretary, FCC, WT
    Docket No. 99-217, CC Docket Nos. 96-98, 88-57, CS Docket No.
    95-184, MM Docket No. 92-260 (May 3, 2001).

[^50]: *See generally* *NAS Broadband Report*, Appendix A at 245-55.

[^51]: As of June 2001, many major MSOs had significantly upgraded their
    networks. *See* *Annual Assessment of the Status of Competition in
    the Market for the Delivery of Video Programming*, CS Docket No.
    01-129, Eighth Annual Report, FCC 01-389, ¶¶ 32-33 (rel. Jan. 14,
    2002) ("*2001 MVPD Competition Report*").

[^52]: A "headend" is "the origination point for signals in the cable
    system. Each local service area is typically served by one or more
    headends. The headend has parabolic or other appropriately shaped
    antennas for receiving satellite-delivered program signals,
    high-gain directional antennas for receiving distant TV broadcast
    signals, directional antennas for receiving local signals, machines
    for playback of taped programming and commercial insertion, and
    studios for local origination and community access programming."
    *See* [Walter Ciciora at al.]{.smallcaps}, [Modern Cable Television
    Technology]{.smallcaps} 12 (1999). The headend may also house
    equipment to connect the cable system to the Internet. *Id.*; *see
    also* Letter from Steven N. Teplitz, Vice President and Associate
    General Counsel, AOL Time Warner, to Royce Sherlock, Deputy Chief,
    Policy and Rules Division, Cable Services Bureau, FCC (January 22,
    2002) ("AOL Time Warner Jan. 22, 2002 Ex Parte") at 4-5.

[^53]: *See supra* note 8; *see also* Kinetic Strategies, Inc.,
    *Overview of Cable Modem Technology and Services*, at
    http://www.cabledatacomnews.com/cmic/cmic1.html (visited Jan. 9,
    2002); Dan Costa, *Cable: This Technology is the Simplest and Most
    Popular Option*, [ZDNet]{.smallcaps}, Dec. 14, 2001, at
    http://msn.zdnet.com/msn/zdnet/story/0,12461,2671130-hud00025inmn1,00.html.

[^54]: *See* Kinetic Strategies, Inc., *Transport Diagram - Home
    Environment*, at http://www.cabledatacomnews.com/cmic/home.html
    (visited Jan. 9, 2001); AOL Time Warner Jan. 22, 2002 Ex Parte at
    4-5.

[^55]: We recognize that when a cable modem service subscriber initiates
    his cable modem service, the cable modem service subscriber's
    computer becomes a part of the Internet, *i.e.*, the network of
    networks and computers.

[^56]: *See generally* Letter from Betsy J. Brady, Vice President,
    Federal Government Affairs, AT&T, to Magalie Roman Salas, Secretary,
    FCC (Dec. 18, 2001), ("AT&T Dec. 18, 2001 Ex Parte*"*), Attachment
    ("AT&T Broadband Choice Program Status") at 12-16; AOL Time Warner
    Jan. 22, 2002 Ex Parte at 5.

[^57]: "Regional data centers," sometimes referred to in whole or in
    part as "super headends" or "master headends," are facilities that
    process, store, and manage data transmitted through cable modem
    service. Regional data centers are located upstream of headends, in
    general, and may serve many headends. *See* AT&T Dec. 18, 2001 Ex
    Parte, Attachment at 11-16; AOL Time Warner Jan. 22, 2002 Ex Parte
    at 5.

[^58]: *See* AT&T Dec. 18, 2001 Ex Parte, Attachment at 9, 12-16; AOL
    Time Warner Jan. 22, 2002 Ex Parte at 5*.*

[^59]: *See* AT&T Dec. 15, 2000 Ex Parte, Attachment ("AT&T Broadband
    Choice Trial - Boulder, Colorado"); AOL Time Warner Jan. 22, 2002 Ex
    Parte at 5.

[^60]: *See* AT&T Dec. 15, 2000 Ex Parte, Attachment ("AT&T Broadband
    Choice Trial - Boulder, Colorado"). Source-based routing allows
    cable operators to determine and implement routing policies to allow
    or deny paths based on the identity of the source system, the
    application being run, the protocol in use, and the size of packets.
    Source-based routing provides a mechanism to label packets in order
    to route them to different ISPs. Source-based routing was used in
    the AT&T Broadband choice (multiple-ISP) trial in Boulder, Colorado,
    in November 2000. *See* *id*.

[^61]: *See* AOL Time Warner Jan. 22, 2002 Ex Parte at 5.
    Destination-based routing sends packets of information from the
    subscriber's PC to the cable network to locations on the Internet
    based on the best match of the destination address (for each packet)
    at each router. *See id.*; AT&T Dec. 15, 2000 Ex Parte, Attachment.

[^62]: *See generally* 47 C.F.R. § 51.319(g) ("Operations support system
    functions consist of pre-ordering, ordering, provisioning,
    maintenance and repair, and billing functions supported by an
    incumbent LEC's (local exchange carrier's) databases and
    information."); *Application by Bell Atlantic New York for
    Authorization under Section 271 of the Communications Act to Provide
    In-Region, InterLATA Service in the State of New York*, 15 FCC Rcd
    3953, 3989-3990 ¶ 83 ("Incumbent LECs use a variety of systems,
    databases, and personnel (collectively referred to as OSS) to
    provide service to their customers.") We recognize that the OSS for
    the cable multiple-ISP context will differ in certain respects from
    the incumbent LEC Section 271 context. In both cases, however, the
    OSS includes or would include the same basic functions of
    pre-ordering, ordering, provisioning, maintenance, and repair
    functions associated with allowing unaffiliated entities, *i.e,,*
    competitive LECs or ISPs, to provide service over the incumbent LEC
    or cable operator's facilities.

[^63]: *See* AT&T Dec. 15, 2000 Ex Parte, Attachment; Excite@Home Aug.
    17, 2001 Ex Parte, Attachment ("Multi-ISP Access Technical
    Landscape") at 13-23.

[^64]: *See* AT&T Dec. 15, 2000 Ex Parte, Attachment.

[^65]: *See* AOL Time Warner Jan. 22, 2002 Ex Parte at 5; Excite@Home
    Aug. 17, 2001 Ex Parte, Attachment at 20. In addition to
    source-based and destination-based routing, other possible routing
    techniques include Point to Point Protocol over Ethernet ("PPPoE")
    and Layer Two Tunneling Protocol ("L2TP") tunneling. PPPoE and L2TP
    are tunneling protocols that enable a Point to Point Protocol
    ("PPP") session between the subscriber and the specified ISP. A
    tunnel is a virtual dedicated connection between two points in a
    network. Tunneling allows data to traverse through an "intervening"
    network of a different protocol and works by encapsulating data from
    one protocol format into another protocol format. PPPoE enables PPP
    to run over bridged networks, and L2TP enables PPP to run over
    routed networks. *See* Letter from Emy Tseng, MIT, *et al.* to
    Magalie Roman Salas, Secretary, FCC in CS Docket No. 00-30 (May 1,
    2000), Attachment at 16-17.

[^66]: For present purposes, we use the term "ISP" to refer to entities
    as described above in footnote Error: Reference source not
    foundError: Reference source not found, recognizing that some
    providers may perform services or functions in addition to those
    indicated. *See, e.g.,* Excite@Home Aug. 17, 2001 Ex Parte,
    Attachment at 2-6.

[^67]: For a general description of cable modem service and its
    underlying technology, *see* [Roderick W. Smith]{.smallcaps},
    [Broadband Internet Connections,]{.smallcaps} Addison-Wesley Pub.
    [(]{.smallcaps}Jan. [2002).]{.smallcaps}

[^68]: *See generally* Letter from Marvin S. Rappaport, Vice President
    Public Policy, Charter Communications, to Magalie Roman Salas,
    Secretary, FCC (Dec. 12, 2001) ("Charter Dec. 12, 2001 Ex Parte")
    *passim*; Cox Aug. 15, 2001 Ex Parte at 4-5. ***See** supra* note
    54.

[^69]: We recognize that not all cable operators include all of these
    functions in their cable modem service offerings.

[^70]: The common term "demarcation point" is used to define that point
    at which operational control or ownership of communications
    facilities changes from one organizational entity, *e.g.*, a cable
    company, to another entity, *e.g.,* an ISP. The demarcation point is
    used to establish a common point whereby the cable company and an
    ISP can separate the portion(s) of the network and its functions for
    which each has responsibility. This demarcation point with regard to
    cable modem service is usually a point within the headend and could
    be found on a piece of equipment where the ISP's Internet backbone
    trunk, *e.g.,* an OC-3, is terminated (on a switch, router or CMTS)
    in order to receive the hand off or transition from the cable
    operator's plant to the Internet. In an alternative approach, the
    cable company provisions its own backbone to the Internet from the
    headend. In this case, the demarcation point is where the cable
    operator's backbone from the CMTS terminates and routes to a gateway
    switch at an ISP's Point of Presence ("POP"), which connects to the
    Internet. *See generally* AT&T Dec. 18, 2001 Ex Parte, Attachment at
    11.

[^71]: *See generally* Excite@Home Aug. 17, 2001 Ex Parte, Attachment at
    4-6, 12; AT&T Dec. 18, 2001 Ex Parte, Attachment at 11-16*.*

[^72]: "Protocol conversion" is a data communications procedure that
    permits computers with different protocols or computer languages to
    communicate with each other. See [Newton's Telecom
    Dictionary]{.smallcaps} 553 *(*17^th^ ed. 2001).

[^73]: *See generally* Cox Aug. 15, 2001 Ex Parte at 15-17*.* The
    Dynamic Host Configuration Protocol ("DHCP") server assigns an IP
    address to the cable modem so that routers connected to the Internet
    will recognize the location of the modem for communications to and
    from the Internet. IP addresses are the locating identification for
    computers or devices that connect to the Internet or other Transfer
    Control Protocol / Internet Protocol ("TCP/IP")
    [network](../network.html). "Networks using the TCP/IP
    [protocol](../protocol.html) route messages based on the IP address
    of the destination. The format of an IPv4 address is a 32-bit
    numeric address written as four numbers separated by periods. Each
    number can be from zero to 255. For example, 1.160.10.240 could be
    an IP address." *See* Webopedia, *IP Address - Definition*, at
    http://www.webopedia.com/TERM/I/IP_address.html (visited Jan. 10,
    2002).

[^74]: *See* Cox Aug. 15, 2001 Ex Parte at 4-5 n.15; Excite@Home Aug.
    17, 2001 Ex Parte, Attachment at 9, 12, 19*.* A DNS is an Internet
    service that enables the translation of domain names into IP
    addresses. When queried about a domain name, a DNS server provides
    the querier with the IP address of the domain name or the IP address
    of another DNS server that may provide the IP address of the domain
    name if the original DNS server does not how to translate a
    particular domain name. Thus, in effect, a DNS acts as its own
    network. *See* Webopedia, *DNS*, at
    http://www.webopedia.com/TERM/D/DNS.html (visited Feb. 19, 2002).
    This translation process is necessary because routing of traffic
    over the Internet is based on IP addresses, not domain names. As a
    result, before a browser can send a packet to a website, it must
    obtain the address for the site. *See* Webopedia, *Domain Name*, at
    http://www.webopedia.com/TERM/D/domain_name.html (visited Jan. 10,
    2002). A "domain name" is a "name that identifies one or more [IP
    addresses](../IP_address.html). For example, the domain name
    microsoft.com represents about a dozen IP addresses. Domain names
    are used in [URLs](../URL.html) to identify particular [web
    pages](../web_page.html)." For example, in the URL
    http://www.fcc.gov*,* the domain name is fcc.gov. *Id.; see also* 47
    U.S.C. § 1127 ("The term 'domain name' means any alphanumeric
    designation which is registered with or assigned by any domain name
    registrar, domain name registry, or other domain name registration
    authority as part of an electronic address on the Internet").

    For more information regarding the DNS, *see* J. Postel, *IETF RFC
    1591, Domain Name System Structure and Delegation* (Mar. 1994) at
    http://www.isi.edu/in-notes/rfc1591.txt (visited Feb. 19, 2002).
    Concerning the importance of the DNS to Internet access service,
    *see* [MCGRAW HILL ENCYCLOPEDIA OF NETWORKING & TELECOMMUNICATIONS
    390]{.smallcaps} (\"DNS servers are strategically located on the
    Internet. There is usually one either directly accessible to your
    system or accessible over as few as one router hop, . . . Most
    Internet service providers have DNS servers.\") (2001); *Werbach
    Paper* at 30 (\"Internet users generally do not need to specify the
    IP number of the destination site, because IP numbers can be
    represented by alphanumeric \'domain names\' such as \'fcc.gov\' or
    \'ibm.com.\' \'Domain name servers\' throughout the network contain
    tables that cross reference these domain names with their underlying
    IP numbers\").

[^75]: *See* Cablevision Systems Corp., *Cablevision Optimum Online -
    Privacy Policy*, at
    http://www.optimumonline.com/retail/r_generic/1,2994,21,00.html#7
    (visited Jan. 10, 2002); Cox Aug. 15, 2001 Ex Parte at 4-5 n.15;
    AT&T Dec. 15, 2000 Ex Parte, Attachment ("AT&T Broadband Choice
    Trial - Boulder, Colorado").

[^76]: "Caching" is the storing of copies of content at locations in the
    network closer to subscribers than their original sources, *i.e.,*
    data from websites, that subscribers wish to see most often in order
    to provide more rapid retrieval of information. *See generally* AT&T
    Dec. 18, 2001 Ex Parte, Attachment at 11-16; AOL Time Warner Jan.
    22, 2002 Ex Parte at 5.

[^77]: *See generally* AT&T Dec. 18, 2001 Ex Parte, Attachment at 9;
    Excite@Home Aug. 17, 2001 Ex Parte, Attachment 4-6, 12. Capacity
    engineering, planning and management, also known as configuration
    and performance management, refers to the ability to measure,
    analyze, track, and forecast consumption or use of network assets to
    meet and maintain Service Level Agreements ("SLAs") of consumers on
    the network. An SLA is an agreement between a user and a service
    provider defining the nature of the service provided and
    establishing a set of metrics to be used to measure the level of
    service provided measured against the agreed level of service. Such
    service levels might include provisioning, average availability,
    restoration times for outages, average and maximum periods of
    outage, average and maximum response times, latency, and delivery
    speeds. The SLA also typically establishes trouble reporting
    procedures, escalation procedures, and penalties for not meeting the
    level of service demanded -- typically refunds to the users. *See*
    [Newton's Telecom Dictionary 616]{.smallcaps} (17^th^ ed. 2001).
    Assets include a data line's capacity (bandwidth in bits per
    second), ports available, and card configurations in switches and
    routers. Other tasks include design of network topology, sizing of
    backbone trunks (*e.g.,* OC-3 at 155.52 Megabits per second up to
    OC-192 at 9.953 Gigabits per second), routing of traffic across the
    network, documentation of customer network assignments (*e.g.*,
    device and port number, IP address, and configurations), support for
    troubleshooting efforts, and study/documentation of usage
    patterns/trends. *See id.*

[^78]: *See generally* Excite@Home Aug. 17, 2001 Ex Parte, Attachment at
    4-6, 12; AT&T Dec. 18, 2001 Ex Parte, Attachment at 9. "Fault
    management" refers to the ability to detect, isolate and correct
    conditions that degrade or destroy computer (hardware and software)
    or network functionality. *See* [Newton's Telecom Dictionary
    270]{.smallcaps} (17^th^ ed. 2001).

[^79]: *See generally* AT&T Dec. 18, 2001 Ex Parte, Attachment at 9;
    Excite@Home Aug. 17, 2001 Ex Parte, Attachment 4-6, 12.

[^80]: "Network Operations Center" is a central place which monitors the
    status of a corporate network and sends out instructions to repair
    bits and pieces of the network when they break. In more formal
    terms, its functions include the monitoring of network status,
    supervision and coordination of network maintenance, accumulation of
    accounting and usage data, and user support. *See* [Newton's Telecom
    Dictionary]{.smallcaps} 473 (17^th^ ed. 2001)*.*

[^81]: *See generally* AT&T Dec. 18, 2001 Ex Parte, Attachment at 9;
    Excite@Home Aug. 17, 2001 Ex Parte, Attachment 4-6, 12.

[^82]: *See, e.g.,* Road Runner, *Residential Service: What is Road
    Runner?* at http://rrcorp.central.rr.com/hso/whatis.asp and
    *Residential Service: Features,* at
    http://rrcorp.central.rr.com/hso/explore_features.asp (describing
    Road Runner, a high-speed Internet access service) (visited Jan. 10,
    2002).

[^83]: In general, a "first screen" or "home page" is the screen that
    comes up first when the user initiates interaction with his or her
    cable modem service provider or ISP, for example, by clicking on the
    ISP's desktop icon or accessing the ISP via the World Wide Web*. See
    FCC AOL Time Warner Order*, 16 FCC Rcd at 6601 ¶ 126 n.360.
    Typically, a subscriber is able to change the first screen to the
    web page of his choice, although the cable operator usually provides
    a default first screen. See Christopher Stern, *Comcast to Open
    High-Speed Internet Network to Rival ISP*, Washington Post (Feb. 26,
    2002) (indicating that Juno and NetZero customers receiving
    high-speed Internet service from NetZero or Juno on a Comcast cable
    system will be greeted by a NetZero or Juno web page when they
    initially launch their service).

[^84]: *See supra* note 34.

[^85]: *See generally* Cox Aug. 15, 2001 Ex Parte at 4-5; Excite@Home
    Aug. 17, 2001 Ex Parte, Attachment at 5-6, 9; AOL Time Warner Jan.
    22, 2002 Ex Parte at 4-5. With the development of the CableLabs®'
    DOCSIS standard for modem compatibility, commercial sales of cable
    modems are possible. *See Annual Assessment of the Status of
    Competition in Markets for the Delivery of Video Programming*, CS
    Docket No. 98-102, Fifth Annual Report, 13 FCC Rcd 24284, 24318-19
    (1998). CableLabs® is a non-profit research and development
    organization created in 1988 by a consortium of cable operators
    representing North America and South America, purposed to develop
    new technologies for the cable industry and to serve as a
    clearinghouse of information regarding technological developments
    impacting the cable industry. *See* CableLabs®, *Fact Sheet* at
    http://www.cablelabs.com/about_cl/factSheet.html (visited Feb. 19,
    2002).

[^86]: *See generally* Cox Aug. 15, 2001 Ex Parte at 4-5; Excite@Home
    Aug. 17, 2001 Ex Parte, Attachment at 4-6; *Bova Statement of Facts,
    supra* note Error: Reference source not found, at 2-3.

[^87]: *See generally* Cox Aug. 15, 2001 Ex Parte at 4-5; Excite@Home
    Aug. 17, 2001 Ex Parte, Attachment at 4-7; *Bova Statement of Facts,
    supra* note Error: Reference source not found, at 2-3; AT&T Dec. 18,
    2001 Ex Parte, Attachment at 8.

[^88]: *See generally* AT&T Dec. 18, 2001 Ex Parte, Attachment at 8, 10.

[^89]: *See* *Morgan Stanley July 2001 Report*, at 31.

[^90]: The At Home Corporation ("@Home") was founded in 1995 by TCI (now
    AT&T) and venture capital firm Kleiner Perkins Caufield & Byers. In
    1996, \@Home received equity investments from Comcast Corp. and Cox
    Communications Inc. Canadian Multiple System Operators ("MSOs")
    Rogers Cablesystems Ltd., and Shaw Communications, along with Sun
    Microsystems, also purchased equity stakes in \@Home through a
    private stock placement in April 1997. The company went public in
    July 1997, and Cablevision Systems Corp. purchased an equity stake
    in the venture in October 1997 in return for distribution of the
    \@Home service in certain of its systems. At Home Corp., *SEC Filing
    10-K for the Year Ended December 31, 2000,* at 4; *Annual Assessment
    of the Status of Competition in Markets for the Delivery of Video
    Programming,* CS Docket No. 97-141, Fourth Annual Report, 13 FCC Rcd
    1034, 1066, n.150 (1998).

[^91]: Rachel Konrad and Alorie Gilbert, *Book Closes on Excite@Home*,
    [CNET News.com]{.smallcaps}, Feb 28, 2002, at
    http://story.news.yahoo.com/news?tmpl=story&u=/cn/20020301/tc_cn/book_closes_on_excite_home;
    At Home Corp., *Excite@Home Reduces Workforce as Operations Wind
    Down: Operations Expected to Cease After February 28, 2002* (press
    release), Dec. 14, 2001. *See infra* n.Error: Reference source not
    found.

[^92]: *See* At Home Corp., *SEC Filing 10-K for the Year Ended December
    31, 2000*, at 3. TCI, Cox, and Comcast were the original investors
    in \@Home. In 1999, AT&T acquired TCI including all of its cable
    systems as well as its partnership in \@Home. When AT&T acquired
    MediaOne in 2000, Media One was using Road Runner to provide cable
    modem service. Following the dissolution of the Road Runner
    partnership and the bankruptcy of Excite@Home, AT&T moved all Road
    Runner and \@Home subscribers to its own network. *AT&T-TCI Merger
    Order*, 14 FCC Rcd 3160 ¶ 7; *AT&T-MediaOne Merger Order*, 15 FCC
    Rcd at 9831 ¶ 28; Time Warner Entertainment Co., LP, *SEC Filing
    10-K for the Year Ended December 31, 2000*, at I-4; AT&T Dec. 18,
    2001 Ex Parte, Attachment at 5; At Home Corp., *Excite@Home Reduces
    Workforce as Operations Wind Down: Operations Expected to Cease
    After February 28, 2002* (press release), Dec. 14, 2001; At Home
    Corp., *Excite@Home Provides Status of Negotiations with Cable
    Companies* (press release), Dec. 1, 2001.

[^93]: At Home Corp., *SEC Filing 10-K for the Year Ended December 31,
    2000*, at 5.

[^94]: In 1996, Time Warner Cable and Time Inc. New Media formed The
    Road Runner Group as a separate business unit to develop and deploy
    high-speed cable data services. In December 1997, Time Warner and
    MediaOne (later acquired by AT&T) formed an alliance and merged
    their cable Internet operations. Time Warner Entertainment Co., LP,
    *SEC Filing 10-K for the Year Ended December 31, 2000*, at I-3;
    Kinetic Strategies, Inc., *Cable Internet Service Providers and
    Systems Integrators*, [Cable DataCom News,]{.smallcaps} at
    http://www.cabledatacomnews.com/cmic/cmic 5.html (visited Jan. 11,
    2002); *see* *Annual Assessment of the Status of Competition in
    Markets for the Delivery of Video Programming*, CS Docket No.
    98-102, Fifth Annual Report ("*Fifth Annual Video Competition
    Report*"), 13 FCC Rcd 24284, 24316 ¶ 56 (1998). The Road Runner
    partnership has dissolved, distributing substantially all of the
    Road Runner assets to AOL Time Warner, which continues to offer
    service under the Road Runner brand name. Time Warner, Inc., *Time
    Warner to Increase Road Runner Ownership and Merge its Operations*
    (press release), Dec. 18, 2000; Time Warner Entertainment Co., LP,
    *SEC Filing 10-K for the Year Ended December 31, 2000*, at I-4; AOL
    Time Warner Jan. 22, 2002 Ex Parte at 1.

[^95]: Time Warner Entertainment Co., LP, *SEC Filing 10-K for the Year
    Ended Dec 31, 2000*, at I-3 and I-4; Kinetic Strategies, Inc.,
    *Cable Internet Service Providers and Systems Integrators*, [Cable
    DataCom News,]{.smallcaps} at
    http://www.cabledatacomnews.com/cmic/cmic5.html (visited Jan. 11,
    2002); *see also* *Fifth Annual Video Competition Report*, 13 FCC
    Rcd at 24316 ¶ 56. Some Time Warner and MediaOne systems were sold
    to other cable operators which retained the Road Runner service.
    AT&T, for example, acquired Road Runner subscribers when it acquired
    cable operator MediaOne. However, AT&T is in the process of
    transitioning those subscribers to the AT&T network. AT&T Dec 18,
    2001 Ex Parte, Attachment at 5. Cox also acquired Road Runner
    subscribers through the acquisition of certain systems, and is in
    the process of transitioning those subscribers to Cox's proprietary
    "Cox High Speed Internet" service. Cox Communications, Inc., *Cox
    Communications Announces Agreement to Avoid Disruption of Cox@Home
    Internet Service* (press release), Dec. 3, 2001.

[^96]: High Speed Access Corp. ("HSA") was formed in April 1998 through
    the merger of two cable Internet service providers: HSAnet of
    Littleton, Colorado and CATV.net of Louisville, Kentucky. In later
    years, owners included Vulcan Ventures Inc. (48.8%), Microsoft,
    Cisco, and Lucent. *See* Kinetic Strategies, Inc., *Cable Internet
    Service Providers and Systems Integrators*, [Cable DataCom
    News,]{.smallcaps} at http://www.cabledatacomnews.com/cmic/cmic5.
    Html (visited Jan. 11, 2002); *see also* *Annual Assessment of the
    Status of Competition in Markets for the Delivery of Video
    Programming*, CS Docket No. 98-102, Fifth Annual Report, 13 FCC Rcd
    24284, 24316 ¶ 56 (1998).

[^97]: High Speed Access Corp., *SEC Filing 10-Q for the Quarter Ended
    June 30, 2001*, at 6; High Speed Access Corp., *SEC Filing 10-K for
    the Year Ended December 31, 2000*, at 3-5; *see also* ACA Comments
    at 6-7. Some of the smaller cable operators serviced by HSA included
    Limestone Cable, Western Shore Cable, Genesis Cable, and Capital
    Cable. Kinetic Strategies, *Commercial Cable Modem Launches in North
    America*, [Cable DataCom News,]{.smallcaps} at
    http://www.cabledatacomnews.com/cmic/cmic75.html (visited Jan. 11,
    2002).

[^98]: Charter Communications Corp., *Charter Communications and HSA
    Close on Purchase Agreement* (press release), Feb. 28, 2002; Charter
    Communications Corp., *Charter Communications Extends Offer to HSA
    for Contracts and Associated Assets Serving Charter Customers*
    (press release), July 31, 2001. HSA Corp has commenced negotiations
    to exit all of its turn key contracts with cable operators other
    than Charter. High Speed Access Corp., *SEC Filing 10-Q for the
    Quarter Ended June 30, 2001*, at 6.

[^99]: At Home Corp., *SEC Filing 10-K for the Year Ended Dec. 31,
    2000*, at 8; Time Warner Entertainment Co., LP, *SEC Filing 10-K for
    the Year Ended Dec. 31, 2000*, at I-3 and I-4; *see* AOL Time Warner
    Jan. 22, 2002 Ex Parte at 1, Kinetic Strategies, Inc., *Cable
    Internet Service Providers and Systems Integrators*, [Cable DataCom
    News,]{.smallcaps} at http://www.cabledatacomnews.com/cmic/
    cmic5.html (visited Jan. 11, 2002).

[^100]: At Home Corp., *SEC Filing 10-K for the Year Ended Dec. 31,
    2000*, at 8; Kinetic Strategies, Inc., *Cable Internet Service
    Providers and Systems Integrators*, [Cable DataCom
    News,]{.smallcaps} at http://www.cabledatacomnews.com/cmic/
    cmic5.html (visited Jan. 11, 2002); Road Runner, *Company
    Information: What We Offer* (fact sheet), May 1999.

[^101]: At Home Corp., *SEC Filing 10-K for the Year Ended Dec. 31,
    2000*, at 8; Kinetic Strategies, Inc., *Cable Internet Service
    Providers and Systems Integrators*, [Cable DataCom
    News,]{.smallcaps} at http://www.cabledatacomnews.com/cmic/
    cmic5.html (visited Jan. 11, 2002).

[^102]: *See* At Home Corp., *SEC Filing 10-K for the Year Ended Dec.
    31, 2000*, at 3-5; Kinetic Strategies, Inc., *Cable Internet Service
    Providers and Systems Integrators*, [Cable DataCom
    News,]{.smallcaps} at http://www.cabledatacomnews.com
    /cmic/cmic5.html (visited Jan 11, 2002).

[^103]: Excite@Home Aug. 17, 2001 Ex Parte, Attachment at 5-6; Road
    Runner, *Company Information: What We Offer* (fact sheet), May 1999.

[^104]: Cox Comments at 3; Comcast Reply in the *2001 MVPD Competition
    Report*, at 9; Cablevision Systems Corp., *SEC Filing 10-Q for the
    Quarter Ended March 31, 2001*, at 3; *Morgan Stanley July 2001
    Report*, at 31.

[^105]: *See* AT&T Comments at 49; *Morgan Stanley July 2001 Report*, at
    31.

[^106]: *See* Cablevision Systems Corp., *Optimum Online*, at
    http://www.optimumonline.com (visited Jan. 11, 2002); *see also*
    *Morgan Stanley July 2001 Report*, at 31. Prior to January 2002,
    Cablevision was providing cable modem service to a limited number of
    its subscribers through Optimum@Home. Cablevision Systems Corp.,
    *SEC Filing 10-Q for the Quarter Ended March 31, 2001*, at 3;
    *Morgan Stanley July 2001 Report*, at 31; John Borland, *\@Home
    Pulling Plug on Cable Partners*, [Cnet News.com]{.smallcaps}, Jan.
    10, 2002, at http://dailynews.yahoo.com/htx/cn/...ling_plug
    \_on_cable\_ partners_1.html (visited Jan 31, 2002).

[^107]: *See* Cox Comments at 3; Adelphia Communications Corp., *SEC
    Filing 10-K for the Year Ended December 31, 2000*, at 4-5; *see
    also* http://www.adelphia.com/internet/ (visited Jan. 11, 2002);
    *see also* *Morgan Stanley July 2001 Report*, at 31. Cox is in the
    process of migrating its Excite@Home subscribers to self-operated
    "Cox High Speed Internet" service. Cox Communications, Inc., *Cox
    Communications Announces Agreement to Avoid Disruption of Cox@Home
    Internet Service* (press release), Dec. 3, 2001.

[^108]: *See* *Morgan Stanley July 2001 Report*, at 31; Letter from
    Emily A. Denney, Cinnamon Mueller, to Magalie Roman Salas,
    Secretary, FCC, (Nov. 21, 2001) ("ACA Nov. 21, 2001 Ex Parte") at
    1-2; *see also* ACA Comments at 6-7; Letter from Matthew M. Polka,
    American Cable Association, to Anne Levine, Cable Services Bureau,
    (Feb. 4, 2002) ("ACA Feb. 4, 2002 Ex Parte") at 1-3.

[^109]: *See* ACA Comments at 6-7; *see also* Kinetic Strategies, Inc.,
    *Cable Internet Service Providers and Systems Integrators*, [Cable
    DataCom News,]{.smallcaps} at http://www.cabledatacomnews.com/cmic/
    cmic5.html (visited Jan. 11, 2002).

[^110]: The ISP Channel ceased operations at the end of 2000. Jim
    Wagner, *ISP Channel Closes Doors at Month End*,
    [InternetNews.Com]{.smallcaps}, Dec. 11, 2000, at
    http://www.internetnews.com/isp-news/article/0,,8_531531,00.html
    (visited Jan. 11, 2002). HSA Corp has commenced negotiations to exit
    all of its turnkey contracts with cable operators other than
    Charter. High Speed Access Corp., *SEC Filing 10-Q for the Quarter
    Ended June 30, 2001*, at 6.

[^111]: *See* Charter Dec. 12, 2001 Ex Parte at 1; Charter
    Communications, Inc., *EarthLink and Charter Launch High-Speed Cable
    Internet Access Joint Service* (press release), Aug. 17, 1998.

[^112]: *See, e.g.*, Charter Dec. 12, 2001 Ex Parte at 1 (Charter's
    cable modem service allows the subscriber "to connect with any
    portals, web sites or any ISP that authorizes web based access. . .
    . Customers may select any home page, start page or ISP experience
    including MSN, AOL, and EarthLink without restriction unless imposed
    by ISPs that do not support web based access."); Cox Aug. 15, 2001
    Ex Parte at 5 ("Cox's cable modem service provides subscribers with
    a variety of enhanced functions including . . . access to other ISPs
    through the web . . .").

[^113]: *See* Netscape, *Do More Online With Netscape 6.2*, at
    http://www.netscape.com/computing/download/index.html? cp+hophb2
    (visited Jan. 22, 2002).

[^114]: *See* Fox News Channel, at http://www.foxnews.com (visited Jan.
    18, 2002).

[^115]: *See* MSN Hotmail, at
    http://lc2.law13.hotmail.passport.com/cgi-bin/login (visited Jan.
    18, 2002).

[^116]: AOL Time Warner Jan. 22, 2002 Ex Parte at 1; Time Warner Inc.,
    *Time Warner to Increase Road Runner Ownership and Manage its
    Operations* (press release), Dec. 18, 2000; *FTC AOL Time Warner
    Merger Order*, *supra* note Error: Reference source not found;
    Federal Trade Commission Office of Public Affairs, *FTC Approves
    AOL/Time Warner Merger with Conditions* (press release), Dec. 14,
    2000 (describing FTC action); *Joint America Online / Time Warner
    Statement on Federal Trade Commission's Favorable Vote on Their
    Merger* (press release), Dec. 14, 2000. Time Warner terminated its
    exclusive agreement with Road Runner so that Time Warner could offer
    multiple ISPs on its cable systems, including AOL, earlier than if
    it had waited for the exclusive agreement to expire by its original
    terms. Time Warner Inc., *Time Warner to Increase Road Runner
    Ownership and Manage its Operations* (press release), Dec. 18,
    2000*.*

[^117]: AOL Time Warner Jan. 22, 2002 Ex Parte at 1. The three services
    are: America Online, Road Runner, and EarthLink. AOL Time Warner has
    also entered into agreements with other national and regional ISPs,
    which, upon approval by the Federal Trade Commission, will allow AOL
    Time Warner to offer consumers additional ISP choice in each
    division. AOL Time Warner Jan. 22, 2002 Ex Parte at 2. On December
    21, 2001, the FTC approved agreements with four ISPs: New York
    Connect.Net, Ltd., Internet Junction Corp., Inter.net US Ltd., and
    STIC.NET, and on February 26, 2002, the FTC approved agreements with
    five more ISPs: West Central Ohio LLC, LocalNet Corp., Gloabal
    Systems, Inc., Big Net Holdings, Inc., and Digital Communications
    Networks, Inc. Letter from Donald S. Clark, Secretary, Federal Trade
    Commission, to Robert D. Joffe, Counsel, Cravath, Swaine & Moore,
    (Dec. 21, 2001) (Approving Motions for Approval of Non-Affiliated
    ISP and Alternative Cable Broadband ISP Service Agreement in
    Connection with Four ISPs); Letter from Donald S. Clark, Secretary,
    Federal Trade Commission, to Robert D. Joffe, Counsel, Cravth,
    Swaine & Moore, (Feb. 26, 2002) (Approving Motions for Approval of
    Non-Affiliated ISP and Alternative Cable Broadband ISP Service
    Agreement in Connection with Five ISPs).

[^118]: *See* AOL Time Warner, *Worldwide AOL Membership Surpasses 34
    Million* (press release), Mar. 12, 2002. On March 12, 2002, AOL Time
    Warner announced the rollout of its AOL High-Speed Broadband service
    in four additional markets. By FTC Order, AOL Time Warner must make
    available to subscribers at least one unaffiliated ISP on Time
    Warner's cable systems before AOL itself begins offering service,
    and must allow two other unaffiliated ISPs onto its cable systems
    within 90 days after AOL's commencement of service. *FTC AOL Time
    Warner Merger Order*; Federal Trade Commission Office of Public
    Affairs, *FTC Approves AOL/Time Warner Merger with Conditions*
    (press release), Dec. 14, 2000 (describing FTC action); *Joint
    America Online / Time Warner Statement on Federal Trade Commission's
    Favorable Vote on Their Merger* (press release), Dec. 14, 2000.

[^119]: Comcast Corp., *Comcast and United Online to Offer NetZero and
    Juno High-Speed Internet Service* (press release), Feb. 26, 2002.
    The first two markets are Nashville, Tennessee and Indianapolis,
    Indiana. The agreement also provides a template for a subsequent
    national rollout of United Online's Internet service to anyone who
    can get Comcast Cable. *Id.* Comcast has also reached a conditional
    agreement with Microsoft to provide MSN ISP service on
    non-discriminatory terms pending conclusion of certain provisions of
    Comcast's proposed merger with AT&T. Comcast Corp., *SEC Filing
    PREM14A*, Feb. 11, 2002, at V-20 to V-21; AT&T Comcast Corp., *SEC
    Filing S-4*, Feb. 11, 2002, (containing Exchange Agreement dated as
    of Dec. 7, 2001, between Microsoft Corp. and Comcast Corp). Comcast
    began its ISP choice effort with a proposed trial of multiple ISP
    service, in which it proposed to offer Juno Express and EarthLink
    over its cable systems in a trial in the Philadelphia area. That
    trial did not occur. Comcast Corp., *Comcast and Juno Announce
    Multiple ISP Trial* (press release), Nov. 29, 2000; *EarthLink,
    Comcast and EarthLink Announce Technical Trial of High-Speed
    Cable-Based Internet Service* (press release), Mar. 27, 2001; *see*
    Comcast Comments at 37-38; *See also* Comcast Reply Comments at
    16-17.

[^120]: AT&T Broadband, *AT&T Broadband and EarthLink Forge ISP Choice
    Agreement* (press release), Mar. 12, 2002. AT&T and EarthLink
    anticipate launching EarthLink's service in additional cities in
    2003. *Id.* AT&T was the first MSO to conduct a multiple-ISP trial,
    which it launched in Boulder, Colorado on November 1, 2000. The
    first phase of the trial, which concluded on May 1, 2001, was
    designed to test technical and operational issues, and involved 300
    subscribers and four ISPs. AT&T conducted a second phase from June
    15 to August 15, 2001 to test billing, customer usage and customer
    care tools. AT&T had planned to roll out service in the Boston,
    Massachusetts area in 2001, but its plans were interrupted by
    ongoing negotiations among the participating ISPs, and the demise of
    Excite@Home. AT&T later announced that it plans to deploy
    multiple-ISP service commercially in several major markets by
    mid-2002. Letter from Joan Marsh, Director, Federal Government
    Affairs, AT&T, to Magalie Roman Salas, Secretary, FCC (Feb. 28,
    2001); *See also* AT&T Comments at 60-64, and AT&T Reply Comments at
    11-15; AT&T Dec. 18, 2001 Ex Parte, Attachment at 3 and 4.

[^121]: At Home Corp., *Excite@Home Reduces Workforce as Operations Wind
    Down: Operations Expected to Cease After February 28, 2002* (press
    release), Dec. 14, 2001; At Home Corp., *Excite@Home Provides Status
    of Negotiations with Cable Companies* (press release), Dec. 1, 2001.

[^122]: Due to Excite@Home's bankruptcy, contracts between AT&T and
    Excite@Home were terminated on December 1, 2001. AT&T now
    self-provides all of the equipment and functions necessary to serve
    its cable modem subscribers. Cox, Comcast, Insight, and Charter all
    reached an agreement with Excite@Home that allowed them to maintain
    Internet access service with Excite@Home until February 28, 2002
    while they transitioned the subscribers to their own high-speed
    network. At the time of \@Home's bankruptcy, Cablevision Systems
    Corp. was still providing cable modem service under the Optimum@Home
    brand, though it had already substantially shifted to the
    self-provisioning model of cable modem service. On January 10, 2002,
    \@Home cut all service to Cablevision's remaining \@Home
    subscribers. AT&T Broadband, *AT&T Moves More Than Half of its
    Internet Customers to New High-Speed* Network (press release), Dec.
    4, 2001; AT&T Dec. 18, 2001 Ex Parte, Attachment at 5; At Home
    Corp., *Excite@Home Provides Status of Negotiations with Cable
    Companies* (press release), Dec. 1, 2001; Cox Communications, Inc.,
    *Cox Communications Announces Agreement to Avoid Disruption of
    Cox@Home Internet Service* (press release), Dec. 3, 2001; Comcast
    Corp., *Comcast Unveils High-Speed Internet Network Plans; Gains
    Final Approval For Excite@Home Agreement* (press release), Dec. 11,
    2001; Karen Brown, *Insight Girds for Excite@Home Transition*,
    [Multichannel News Online]{.smallcaps}, Jan. 29, 2002, at
    http://www.tvinsite.com/index.asp?layout=story&articleId=CA194108&pubdate=01/29/2002&stt=001&display=searchResults
    (visited Mar. 13, 2002); Cablevision Systems Corp., *SEC Filing 10-Q
    for the Quarter Ended March 31,* 2001, at 3; John Borland, *\@Home
    Pulling Plug on Cable Partners*, [Cnet News.com]{.smallcaps}, Jan.
    10, 2002, at http://dailynews.yahoo.
    com/htx/cn/...ling_plug_on_cable\_ partners_1.html (visited Jan. 31,
    2002); *E@H Fallout: Charter*, [CableFAX Daily]{.smallcaps}, Dec. 7,
    2002, at 1.

[^123]: AT&T Dec. 18, 2001 Ex Parte, Attachment at 3 ("New network
    designed to optimize open access"), 4 (listing required
    enhancements, including Service Agent modifications and network
    "upgrade to include scaleable policy based routing solution"). AT&T
    has stated that the new network is designed to enable multiple ISP
    service and that it is capable of doing so on a commercial basis
    once certain enhancements are added. *Id.*

[^124]: Cox Communications, Inc., *Cox Communications and EarthLink
    Agree to High-Speed Cable-Based Internet Service Trial* (press
    release), Apr. 24, 2001; Cox Communications, Inc., *Cox, AOL and
    EarthLink Launch High-Speed Service Trial* (press release), Nov. 6,
    2001; s*ee* Charter Dec. 12, 2001 Ex Parte at 1. Cox's six-month
    trial is taking place in its El Dorado, Arkansas, system with 50
    subscribers. Cox Communications, Inc., *Cox, AOL and EarthLink
    Launch High-Speed Service Trial* (press release), Nov. 6, 2001.

[^125]: AT&T Dec. 18, 2001 Ex Parte, Attachment at 11. While routing
    techniques are not new technologies, especially with regard to the
    Internet, they are new to cable operators, as the operators have not
    used the routing techniques in this fashion before.

[^126]: The IP-based data transmission of cable modem service, with a
    connectionless, "best effort" delivery model, does not guarantee the
    delivery of packets in any specific order, in a timely manner, or at
    all. In order to deploy real time applications over IP networks with
    an acceptable level of quality, certain bandwidth, latency, and
    jitter requirements, known as Quality of Service ("QoS"), must be
    guaranteed and met in a fashion that allows multimedia traffic to
    coexist with traditional data traffic on the same network.
    Applications such as video streaming, IP telephony, and
    video-conferencing are extremely bandwidth-and delay-sensitive,
    imposing unique QoS demands on the underlying network that carry
    them. *See* [Newton's Telecom Dictionary 562]{.smallcaps} (17^th^
    Ed. 2001)*.* QoS guarantees network bandwidth and availability for
    applications. Any real time media stream that crosses a DOCSIS cable
    modem-compatible access link needs to be given prioritized traffic
    management treatment in order to assure the best user-perceived
    quality end-to-end. DOCSIS 1.1 provides several potential methods
    for classifying traffic and several access-link traffic management
    functions, which could be applied to the traffic of unaffiliated
    ISPs to provide and improve QoS. *See* Glossary - DOCSIS 1.1 at
    http://www.cablelabs.com/news_room/glossary2.html (visited Dec. 18,
    2001)*.*

[^127]: *See* AT&T Comments at 54-66; NCTA Comments at 69-76;
    Excite@Home Aug. 17, 2001 Ex Parte, Attachment; AT&T Dec. 18, 2001
    Ex Parte, Attachment at 5, 6, 8, 9, 11-16.

[^128]: *Notice*, 15 FCC Rcd at 19293 ¶ 15.

[^129]: We do not consider here other Internet-based services that cable
    operators may offer, such as service on virtual private networks
    ("VPNs"). VPNs provide the capability to send and receive data
    between two computers as though they are connected with a dedicated
    private line (point-to-point link), even though they are using the
    shared resources of the Internet. Regis Bates and Donald Gregory,
    [Voice and Data Communications Handbook]{.smallcaps} at 440
    (McGraw-Hill 2001). *See also* [Newton\'s Telecom Dictionary 751-52
    (]{.smallcaps}17^th^ Ed. 2001).

[^130]: *See* Communications Act § 602(6), 47 U.S.C. § 522(6), and
    Comcast Comments at 16-18.

[^131]: *See* Communications Act § 3(20), 47 U.S.C. § 153(20), and
    SBC/BellSouth Comments at 12-18.

[^132]: *See* Cox Comments at 28-30.

[^133]: *See* Communications Act § 3(46), 47 U.S.C. § 153(46).

[^134]: Verizon Reply Comments at 18-19.

[^135]: *See* AT&T Comments at 29-30; Competition Policy Institute
    Comments at 10. *See also* ACA Comments at 15 ("advanced service").
    We note at the outset that no party to this proceeding asserts, and
    no court has held, that cable modem service as we use that term is a
    telecommunications service and nothing more. Even the commenters
    that approach this position acknowledge that the service contains
    additional elements that go beyond the statutory definition of
    telecommunications service. *See* Competitive Access Coalition
    Comments at 10; Matthew P. Lampe Comments ¶¶ 3-4 (citing content);
    New Hampshire ISP Ass'n Comments ¶¶ 18, 19, 23.3, 24.1 (noting
    existence of session, presentation, and application, information
    services and programming services); Verizon Comments at 10-11
    (noting content). EarthLink defines the term "cable modem service"
    in its Comments to mean "the underlying facilities-based
    transmission service that is necessary to provide the information
    service commonly referred to as 'Internet access.'" EarthLink Reply
    Comments at 9. Here, we are defining the term "cable modem service"
    to mean the complete retail offering that is provided to
    subscribers. *See* *infra* para. 38. EarthLink concludes that cable
    modem service, as it defines that term, is a telecommunications
    service. EarthLink Reply Comments at 10.

[^136]: *Gulf Power*, 122 S. Ct. at 783-84, *citing* *Chevron U.S.A.
    Inc. v. Natural Resources Defense Council, Inc.*, 467 U.S. 837
    (1984).

[^137]: Communications Act § 3(46), 47 U.S.C. § 153(46).

[^138]: Communications Act § 3(43), 47 U.S.C. § 153(43).

[^139]: Communications Act § 3(20), 47 U.S.C. § 153(20). The term
    "information service" follows from a distinction the Commission drew
    in the *First, Second, and Third Computer Inquiries* ("*Computer
    Inquiries*"). *See generally* *Regulatory and Policy Problems
    Presented by the Interdependence of Computer and Communications
    Services and Facilities*, Docket No. 16979, Final Decision and
    Order, 28 F.C.C. 2d 267 (1971), *aff\'d in part sub nom. GTE Service
    Corp. v. FCC*, 474 F.2d 724 (2d Cir. 1973), *decision on remand*,
    Order, 40 F.C.C. 2d 293 (1973); *Amendment of Section 64.702 of the
    Commission\'s Rules and Regulations (Second Computer Inquiry)*
    ("*Computer II Final Decision*"), CC Docket No. 20828, Final
    Decision, 77 FCC 2d 384 (1980), *on reconsideration*, Memorandum
    Opinion and Order, 84 F.C.C. 2d 50 (1980) *and* Memorandum Opinion
    and Order on Further Reconsideration, 88 F.C.C. 2d 512 (1981),
    *aff\'d sub nom. Computer and Commun. Indus. Ass\'n v FCC*, 693 F.2d
    198 (D.C. Cir. 1982), *cert.* *denied*, 461 U.S. 938 (1983);
    *Amendment of Section 64.702 of the Commission\'s Rules and
    Regulations (Third Computer Inquiry)*, CC Docket No. 85-229, Report
    and Order, Memorandum Opinion and Order on Further Reconsideration,
    104 F.C.C. 2d 958 (1986), *on reconsideration*, Memorandum Opinion
    and Order on Reconsideration, 2 FCC Rcd 3035 (1987), Memorandum
    Opinion and Order on Reconsideration, 3 FCC Rcd 1135 (1988) *and*
    Memorandum Opinion and Order on Further Reconsideration and Second
    Further Reconsideration, 4 FCC Rcd 5927 (1989), *vacated in part*,
    *California v. FCC*, 905 F.2d 1217 (9th Cir. 1990); Report and
    Order, 2 FCC Rcd 3072 (1987), *on reconsideration*, Memorandum
    Opinion and Order on Reconsideration, 3 FCC Rcd 1150 (1988),
    *vacated in part, California v. FCC*, 905 F.2d 1217 (9th Cir. 1990);
    *Computer III Remand Proceedings*, Report and Order, 5 FCC Rcd 7719
    (1990), *on reconsideration*, Memorandum Opinion and Order on
    Reconsideration, 7 FCC Rcd 909 (1992), *petitions for review
    denied*, *California v. FCC*, 4 F.3d 1505 (9th Cir. 1993); *Computer
    III Remand Proceedings; Bell Operating Company Safeguards and Tier I
    Local Exchange Company Safeguards*, CC Docket No. 90-623, Report and
    Order, 6 FCC Rcd 7571 (1991), *vacated in part and remanded,
    California v. FCC*, 39 F.3d 919 (9th Cir. 1994), *cert. denied*, 514
    U.S. 1050 (1995); *Computer III Further Remand Proceedings: Bell
    Operating Company Provision of Enhanced Services; 1998 Biennial
    Review - Review of Computer III and ONA Safeguards and
    Requirements*, CC Docket Nos. 95-20, 98-10; *Further Notice of
    Proposed Rulemaking*, Report and Order, 13 FCC Rcd 6040 (1998),
    Report and Order, 14 FCC Rcd 4289 (1999), *on reconsideration*,
    Order, 14 FCC Rcd 21628 (1999).

    These decisions drew a distinction between bottleneck common carrier
    facilities and services for the transmission or movement of
    information on the one hand and, on the other, the use of computer
    processing applications to act on the content, code, protocol, or
    other aspects of the subscriber's information. The latter are
    "enhanced" or information services. This distinction was
    incorporated into the Modification of Final Judgment ("MFJ"), which
    governed the Bell Operating Companies after the Bell System
    Break-Up, and into the 1996 Act. *Universal Service Report* 13 FCC
    Rcd at 11536 ¶ 75 (1998), citing *United States v. Western Electric
    Co*., 673 F. Supp. 525 (D.D.C. 1987), *and* 714 F. Supp. 1 (D.D.C.
    1988), *rev'd in part*, 900 F.2d 283 (D.C. Cir. 1990). The
    Commission has confirmed that the two terms -- enhanced services and
    information services -- should be interpreted to extend to the same
    functions. *Implementation of the Non-Accounting Safeguards of
    Sections 271 and 272 of the Communications Act of 1934, as amended*,
    CC Docket No. 96-149, First Report and Order and Further Notice of
    Proposed Rulemaking ("*Non-Accounting Safeguards Order*"), 11 FCC
    Rcd 21905, 21955-56 ¶ 102.

[^140]: *Universal Service Report*, 13 FCC Rcd at 11530 ¶ 59 (noting
    "Congress's direction that the classification of a provider should
    not depend on the type of facilities used . . . \[but\] rather on
    the nature of the service being offered to consumers.").

[^141]: *See* *id.*, 13 FCC Rcd at 11536 ¶ 73 (1998). The *Universal
    Service Report* advised Congress about the implementation of certain
    provisions of the 1996 Act concerning the universal service system.
    It focused in part on the relationship between universal service and
    the explosive growth of Internet-based information services. The
    report specifically reserved the question of the statutory
    classification of cable modem service. *Id.* at 11535 n.140.

[^142]: *See id.*, 13 FCC Rcd at 11537 ¶ 75.

[^143]: *See* *id.*

[^144]: *See id.*, 13 FCC Rcd at 11537-39 ¶¶ 76-78.

[^145]: For a description of the DNS, *see supra* note Error: Reference
    source not found.

[^146]: This is accomplished by the IETF RFC #1035, *Domain Names --
    Implementation and Specification*, § 3.5 at 21 ("IN-ADDR.ARPA
    domain") (Nov. 1987). The Commission has previously found that
    simple reverse directory service constitutes an enhanced or
    information service. *US West Communications, Inc., Petition for
    Computer III Waiver*, Order, 11 FCC Rcd 1195, 1199 ¶ 28 (Chief,
    Common Carrier Bur. 1995) ("The *NATA Centrex Order* concluded that
    the provision of access to a data base for purposes other than to
    obtain the information necessary to place a call will generally be
    found to be an enhanced service. The presumption regarding such
    services, therefore, is that they are enhanced unless they are shown
    to be otherwise.").

[^147]: Cox has described some of the functions of the DNS with respect
    to how it is used in Cox's cable modem service offering. *See* *Bova
    Statement of Facts*, *supra* note Error: Reference source not found,
    at 5 (describing Cox cable modem service as follows: "When
    subscribers seek to send an e-mail message, the domain name system
    ('DNS') server . . . provides the fully-qualified host name and
    Internet Protocol ('IP') address of the mail server serving the
    subscribers."), 6 (same: "The CoxCom cable Internet service provides
    IP address translation to subscribers as an integral part of the
    provision of the foregoing services \[access to the Internet,
    content created or aggregated by CoxCom, storage or 'caching' of
    popular content or information, Internet newsgroups, web hosting
    services, and electronic mail\]. . . . CoxCom's cable Internet
    service stores on its dedicated DNS servers, and allows subscribers
    to access and use, domain name resolution information, other
    Internet host information and programming that translates these
    commonly used domain names into IP addresses to enable routing. . .
    . *Without this service, Internet access would be impractical for
    most users.*" (italics added)).

[^148]: Examples of the extensibility of the Domain Name System include
    the IETF RFC #2915 *The Naming Authority Pointer (NAPTR) DNS
    Resource Record* (Sept. 2000); and IETF RFC *#2916, E. 164 number
    and DNS* (Sept. 2000).

[^149]: *See* 47 U.S.C. § 231(e)(4) (defining the term "Internet access
    service" to include various functions); *Universal Service Report*,
    13 FCC Rcd at 11537 ¶ 76 ("Internet access providers typically
    provide their subscribers with the ability to run a variety of
    applications, including World Wide Web browsers, FTP clients, Usenet
    newsreaders, electronic mail clients, Telnet applications, and
    others." (footnotes omitted)).

[^150]: *See* Communications Act § 3(20), 47 U.S.C. § 153(20).
    Information services do not implement "the management, control, or
    operation of a telecommunications system or the management of a
    telecommunications service."

[^151]: *See* AT&T Comments at 21-23; AT&T Reply Comments at 13-14,
    33-39; Cox Aug. 15, 2001 Ex Parte at 4-5 n.15.

[^152]: *See* AT&T Dec. 18, 2001 Ex Parte, Attachment at 7 (describing
    behavior of subscribers to AT&T Broadband as including e-mails, web
    surfing) 9 ("AT&T Broadband . . . Provides DNS . . .."); Letter from
    Emily A. Denney, Esq., of Cinnamon Mueller, counsel for ACA, to Ms.
    Magalie Roman Salas, Secretary, FCC (Jan. 30, 2001) ("BELD Jan. 30,
    2002 Ex Parte") at 1 (describing the cable modem service of the
    Braintree, Massachusetts, Electric Light Board as follows: "BELD
    provides its customers information services including email, web
    hosting, and the BELD homepage, which includes local news, . . .");
    *Bova Statement of Facts*, *supra* note Error: Reference source not
    found, at 7 ("Enhanced functions such as . . . DNS functions must be
    performed by CoxCom to enable the subscriber to transmit or receive
    [any]{.underline} information using the cable modem platform to or
    from [anywhere]{.underline}. . . . The current cable modem
    architecture requires CoxCom to perform these functions as an
    integral part of its network." (underlining in original)); Charter
    Dec. 12, 2001 Ex Parte at 1 ("We have provided at no additional
    charge web hosting, e-mail, caching, web browser, news server, IP
    addressing, DNS address translation, . . . security and other
    functions for accessing or using the Internet."); Cox Aug. 15 2001
    Ex Parte at 5 ("Cox's cable modem service provides subscribers with
    a variety of enhanced functions including subscriber browsing and
    retrieval of files from the World Wide Web, access to other Internet
    service providers through the Web, use of electronic mail, and
    access to and interaction with online newsgroups. In addition, . . .
    the Cox cable modem service provides the subscriber with content
    such as news, . . . . Cox also provides the subscriber with the
    ability to customize his or her welcome page . . . and the ability
    to create 'homepages' . . . .").

[^153]: In this regard we note that some cable modem service users may
    choose not to use the e-mail or webhosting, for example, that is
    provided with their cable modem service. Nearly every cable modem
    service subscriber, however, accesses the DNS that is provided as
    part of the service. *See Bova Statement of Facts*, *supra* note
    Error: Reference source not found, at 5-7 (listing all the popular
    applications that use DNS).

[^154]: Several commenters, for example, appear to claim that there is
    within cable modem service, as currently offered to retail
    subscribers, a distinct "telecommunications service," such as the
    transmission of data over the cable system between the subscriber
    and the headend, separate from the web surfing, e-mail, and other
    functions that comprise cable modem service. *See, e.g.,* ASCENT
    Comments at 13; OpenNET Comments at 19; WorldCom Comments at 10-11;
    WorldCom Reply Comments at 12-19. As noted above, *supra* note
    Error: Reference source not found, EarthLink defines the term "cable
    modem service" in its Comments to mean "the underlying
    facilities-based transmission service that is necessary to provide
    the information service commonly referred to as 'Internet access'"
    and concludes that cable modem service, as EarthLink defines it, is
    a telecommunications service. EarthLink Reply Comments at 9-10. As
    we have just found, no such separate and distinct service is being
    offered now.

[^155]: *See* 47 U.S.C. § 153(20).

[^156]: *See* *Implementation of the Non-Accounting Safeguards of
    Section 271 and 272 of the Communications Act of 1934, as amended*,
    CC Docket No. 96-149, Order on Remand ("*Non-Accounting Safeguards
    Remand*"), 16 FCC Rcd 9751, 9770 ¶ 36 (2001).

[^157]: *See id.,* 16 FCC Rcd at 9751 ¶ 16, 9758-59 ¶ 32 (stating that
    some parties\' \"argument ignores the Act\'s distinction between
    \'telecommunications\' and \'telecommunications service.\' . . . .
    \[I\]nformation service providers as such are not providing
    \'telecommunications service\' under the Act, and thus are not
    subject to common carrier regulation.\"), 9769 ¶ 34 (2001).

[^158]: *See* *Non-Accounting Safeguards Remand*, 16 FCC Rcd at 9755 ¶ 8
    (stating that the categories of \"telecommunications service\" and
    \"information service\" are \"mutually exclusive"); *Federal-State
    Joint Board on Universal Service*, CC Docket No. 96-45, Report and
    Order ("*Universal Service Order*"), 12 FCC Rcd 8776, 9179-80 ¶¶
    788-90 (1997) (stating that information services are not inherently
    telecommunications services simply because they are offered via
    telecommunications).

[^159]: *See* Communications Act § 3(46), 47 U.S.C. § 153(46).

[^160]: *See Universal Service Report*, 13 FCC Rcd at 11520 ¶ 39. *See
    also Non-Accounting Safeguards Remand*, 16 FCC Rcd at 9770 ¶ 36.

[^161]: *See Universal Service Report*, 13 FCC Rcd at 11534 ¶ 69.

[^162]: *See id.*, 13 FCC Rcd at 11521 ¶ 41 (stating that "\[w\]hen an
    entity offers subscribers the 'capability for generating, acquiring,
    storing, transforming, processing, retrieving, utilizing or making
    available information via telecommunications,' it does not *provide*
    telecommunications; it is *using* telecommunications.") (italics
    added).

[^163]: *See* Letter from John W. Butler, Counsel for EarthLink, Inc.,
    to Kenneth W. Ferree, Chief, Cable Services Bureau, FCC (Nov. 8,
    2001), transmitted by letter from John W. Butler, Counsel for
    EarthLink, Inc., to Magalie Roman Salas, Secretary, FCC (Nov. 8,
    2001), ("EarthLink Nov. 8, 2001 Ex Parte") at 9-10.

[^164]: *Id.* at 6. *See also supra* note Error: Reference source not
    found.

[^165]: EarthLink Nov. 8, 2001 Ex Parte at 2 (stating that it is "quite
    clear that where an entity uses its own transmission facilities to
    provide an information service to the public, that entity is
    required as a condition of being allowed to provide information
    services to make its transmission facilities available to other
    information service providers"). *See* EarthLink Reply Comments at
    36-38 (concluding that cable operators offer cable modem service
    indiscriminately to the public).

[^166]: EarthLink Nov. 8, 2001 Ex Parte at 3.

[^167]: *See, e.g.,* EarthLink Comments at 22-23, 29-30; EarthLink Reply
    Comments at 31. *See also* WorldCom Comments at 14; WorldCom Reply
    Comments at 18. The cases these commenters principally rely on are
    *Non-Accounting Safeguards*, 16 FCC Rcd at 9771 ¶ 38; *Independent
    Data Commun. Mfgrs. Ass'n, Inc. Petition for Declaratory Ruling That
    AT&T\'s InterSpan Frame Relay Service Is a Basic Service; and AT&T
    Petition for Declaratory Ruling That All IXCs be Subject to the
    Commission\'s Decision on the IDCMA Petition,* Memorandum Opinion
    and Order DA 95-2190 ("*Frame Relay*"), 10 FCC Rcd 13717, 13722 ¶ 40
    (Chief, Common Carrier Bur. 1995); and the *Computer Inquiries*,
    *supra* note Error: Reference source not found.

[^168]: *See, e.g., Frame Relay, supra* note Error: Reference source not
    found; *Computer Inquiries*, *supra* note Error: Reference source
    not found. *But see* EarthLink Nov. 8, 2001 Ex Parte at 3 n.2
    (asserting that "the fact that AT&T might also have offered the
    frame relay service separately from the enhanced service was
    irrelevant to the Commission's separate treatment of the pure
    transmission component of the bundled service").

[^169]: *See, e.g.*, *Frame Relay, supra* note Error: Reference source
    not found. By "wireline," we refer to services provided over the
    infrastructure of traditional telephone networks.

[^170]: In *Computer II*, the Commission found that enhanced service
    providers were not "common carriers" under the Act and therefore
    were not subject to regulation under Title II of the Act. *Computer
    II*, 77 F.C.C. 2d at 430-34 ¶¶ 120-29; *see id.* at 431-32 ¶ 123
    ("to subject enhanced services to a common carrier scheme of
    regulation because of the presence of an indiscriminate offering to
    the public would negate the dynamics of computer technology in this
    area").

[^171]: EarthLink Nov. 8, 2001 Ex Parte at 7-8 (stating that by offering
    local exchange service over its cable facilities, "Cox has chosen
    freely to enter into the common carrier telecommunications business
    . . . . Having made that choice to be a common carrier, however,
    both by offering 'pure' transmission and by offering information
    services over its own facilities, neither Cox nor any other cable
    company with similar offerings can now avoid the undisputed legal
    obligations that attach to providers of such services.").

[^172]: *Wireline Broadband NPRM, supra* note Error: Reference source
    not found, ¶ 36 (italics added).

[^173]: *Id.* at ¶ 22.

[^174]: *See* 47 C.F.R. § 1.3; *WAIT Radio v. FCC*, 418 F.2d 1153, 1159
    (D.C. Cir. 1969), *cert. denied*, 409 U.S. 1027 (1972).

[^175]: *Northeast Cellular Tel. Co. v. FCC*, 897 F.2d 1164, 1166 (D.C.
    Cir. 1990).

[^176]: Cable operators have repeatedly stated that if local governments
    imposed multiple ISP access requirements, they would delay
    deployment of cable modem service and other services, apparently
    including local exchange service. *See, e.g.,* Jason Krause, *AT&T
    Cable Wins Broadband Case in Portland*,
    [TheStandard.com]{.smallcaps}, June 22, 2000, available at 2000 WL
    31589696; Venessa Hua, *Fight Over Open Access; Supervisor Proposes
    AT&T Share Cable System by End of '01*, [San Francisco
    Examiner]{.smallcaps}, May 24, 2000, available at 2000 WL 6163923;
    K. C. Neel and Eric Glick, *GTE Whacks AT&T/Comcast with Lawsuit*,
    [Cable World]{.smallcaps}, Nov. 1, 1999, available at 1999 WL
    28837464; Greg Edwards, *High-Speed Networks Threaten Richmond, Va.,
    Internet Service Providers*, [Knight-Ridder Tribune Business News:
    Richmond Times-Dispatch -- Virginia]{.smallcaps}, Oct. 29, 1999,
    available at 1999 WL 28703253 (stating that "\[i\]f they must
    provide such access, cable companies warn, they will be forced to
    delay the deployment of Internet, *telephone* and digital television
    services.") (italics added); Leslie Hillman, *Miami-Area Cable Firms
    Do Not Have to Open Lines to Rival Companies*, [Knight-Ridder
    Tribune Business News: Sun-Sentinel - Fort Lauderdale,
    Florida]{.smallcaps}, Oct. 20, 1999; Joe Estrella, *Access Advocates
    Say See You in St. Louis*, [Multichannel News]{.smallcaps}, Oct. 18,
    1999, available at 1999 WL 10010373 (stating that "\[s\]ome industry
    followers worried that AT&T will delay a proposed \$19 million
    upgrade in St. Louis, \[if multiple ISP access is required\] thereby
    delaying the introduction of cable-modem service to some 55,000
    customers. 'They took Portland off the top-l0 list, didn\'t they?'
    one source said.").

[^177]: *See, e.g.,* H.R. Conf. Rep. 104-458, 1996 WL 46795 (Leg.Hist.)
    at \*201 (Jan. 31, 1996) (stating that "in the future, the conferees
    anticipate that cable companies will be providing local telephone
    service and the BOCs ('Bell Operating Companies') will be providing
    cable service").

[^178]: *See infra* note Error: Reference source not found.

[^179]: We note that a companion notice of proposed rulemaking,
    *Wireline Broadband NPRM*, *supra* note Error: Reference source not
    found, will address the broader issue of the application of
    *Computer II* requirements to facilities-based wireline providers of
    broadband Internet access services.

[^180]: *See supra* paras. 20-29.

[^181]: AOL Time Warner's recent deployment of a multiple-ISP approach
    to offering cable modem service is discussed in paragraphs 52-54
    below.

[^182]: *See Bova Statement of Facts*, *supra* note Error: Reference
    source not found, at 8 (stating that "\[i\]n other systems, such as
    Cox Express systems, CoxCom has no arrangement with At Home and
    obtains elements necessary to provide Internet services from other
    parties or supplies them itself."). *See also supra* paras. 21-23.

[^183]: AT&T, Cox, Comcast, and Charter have migrated (or are in the
    process of migrating) all of their former \@Home subscribers off of
    Excite@Home's network to their own networks. *Cable Notes*,
    [Warren\'s Cable Reg. Monitor]{.smallcaps}, Mar. 11, 2002; AT&T Dec.
    18, 2001 Ex Parte, Attachment at 5; AT&T Broadband, *AT&T Broadband
    Internet Customers Successfully Moved to New High-SP* (press
    release), Dec. 7, 2001, *available at* http://www.attbroadband.com/
    services/other/pressreleases/ 2001_12_01.html (visited Feb. 19,
    2002); Cox Communications, Inc., *Cox Communications Announces
    Agreement to Avoid Disruption of Cox@Home Internet Service* (press
    release), Dec. 3, 2001, *available at*
    http://www.cox.com/PressRoom/No%20 . . .
    Disruption.asp?LocalSys=&LocalSys= (visited Dec. 18, 2001); Comcast
    Corp., *Comcast Unveils High-Speed Internet Network Plans; Gains
    Final Approval For Excite@Home Agreement* (press release), Dec. 11,
    2001, *available at* http://www.comcast.com/defaultframe.
    asp?section=press_room&SubSection=pr-cable_news (visited Feb. 19,
    2002); Charter Dec. 12, 2001 Ex Parte, at 1.

[^184]: *See supra* paras. 21-23.

[^185]: *See supra* paras. 21, 24. *See also* ACA Comments at 6-7 ("Many
    ACA members provide cable modem service through agreements with
    unaffiliated ISPs. ACA members and companies such as HSA . . . have
    negotiated agreements for unaffiliated ISP access to the cable modem
    platform in smaller markets.") (underlining omitted); ACA Feb. 4,
    2002 Ex Parte at 2 (although some unaffiliated ISPs with whom ACA
    members had agreements have folded, "a substantial number of ACA
    members continue to transact with unaffiliated ISPs"). One cable
    operator in northern New England, MetroCast, offers cable modem
    service with many inputs supplied by a regional ISP, Great Works
    Internet. *See* Metrocast Online, *available at*
    http://www.metrocastonline.com/ (visited Feb. 1, 2002) and Great
    Works Internet, *available at* http://www.gwi.net/ (visited Feb. 1,
    2002).

[^186]: *See supra* paras. 21-23

[^187]: Road Runner, *Company Info*, *available at*
    http://www.rr.com/rdrun/ (visited Feb. 20, 2002). *See also supra*
    para. 21. AOL Time Warner has recently begun providing cable modem
    service using its affiliated ISP AmericaOnline, as well as a variety
    of unaffiliated ISPs including EarthLink, which we discuss
    separately below. *See* AOL Time Warner Jan. 22, 2002 Ex Parte.

[^188]: *See* ACA Comments at 6-7; ACA Nov. 21, 2001 Ex Parte;;
    Excite@Home Aug. 17, 2001 Ex Parte, Attachment at 5-6. *See also*
    *BELD Broadband*, *available at* http://www.beld.net (small cable
    operator's cable modem service first page includes access to ten
    search engines, including Alta Vista, Excite, Google, HotBot,
    Infoseek, Lycos, WebCrawler, and Yahoo!) (visited Jan. 29, 2002).

[^189]: *See* authorities cited *supra* note Error: Reference source not
    found; Excite@Home Aug. 17, 2001 Ex Parte, Attachment at 5-6.

[^190]: ACA Nov. 21, 2001 Ex Parte at 1; AOL Time Warner Jan 22, 2002 Ex
    Parte at 5; *Bova Statement of* Facts, *supra* note Error: Reference
    source not found, at 2-3, 4-6; Excite@Home Aug. 17, 2001 Ex Parte,
    Attachment at 5-6; Road Runner, *Residential Service, Technology*,
    *available at* http://www.rr.com/rdrun/ (visited Feb. 20, 2002).
    Excite@Home operated regional networks that supplied connectivity
    between the cable headend and the Internet. At Home Corp., *SEC
    Filing 10-K for the Year-Ended Dec. 31, 2000*, at 8; Excite@Home
    Aug. 17, 2001 Ex Parte, Attachment at 5-6.

[^191]: Charter Dec. 12, 2002 Ex Parte. Charter previously contracted
    with Excite@Home and HSA for connectivity between any given cable
    system and the Internet backbone, as well as email, web-hosting, and
    similar functions. *Id*; Excite@Home Aug. 17, 2001 Ex Parte,
    Attachment at 5-6. As noted above, Cox, Comcast, and AT&T have
    eliminated their reliance on input providers altogether and have
    adopted a self-provisioning approach.

[^192]: As noted in paragraph 52 below, AOL Time Warner has implemented
    a multiple ISP business model that differs somewhat from models used
    by other cable operators. Moreover, as described in paragraph 54
    below, if a cable operator's input function were a pure
    telecommunications offering, we conclude that, given the cable
    operator does not hold itself out indiscriminately to serve all
    ISPs, such offering would be a private carrier service.

[^193]: *See supra* text accompanying notes Error: Reference source not
    found-Error: Reference source not found.

[^194]: *See* AOL Time Warner Jan. 22, 2002 Ex Parte at 1-2. AOL Time
    Warner notes that it adopted a multiple ISP business plan before any
    obligations were imposed on it by the FTC. *Id.* at 3. Other cable
    operators have completed or are conducting trials of multiple ISP
    offerings and appear to be effecting commercial deployment of
    multiple ISP cable modem service offerings. *See supra* paras. 26,
    28. Comcast appears to be in the initial stages of implementing its
    own access arrangements with unaffiliated ISPs. Comcast, *Comcast
    and United Online to Offer NetZero and Juno High-Speed Internet
    Service* (press release), Feb. 26, 2002, *available at*
    http://www.comcast.com/press_room/viewrelease.asp?pressid=130
    (visited Feb. 27, 2002); Exchange Agreement dated as of Dec. 7,
    2001, between Microsoft Corp. and Comcast Corp., *available at*
    http://www/sec.gov/Archives/edgar/. . .
    0095012302001136/e56461s4ex2-6.txyt (visited Feb. 27, 2001).

[^195]: AOL Time Warner Jan. 22, 2002 Ex Parte at 1-3.

[^196]: Time Warner Cable has entered into agreements with various
    national and regional ISPs. *See* AOL Time Warner Jan. 22, 2002 Ex
    Parte at 2-3; FTC, *Application for Approval of Non-Affiliated ISP
    and Alternative Cable Broadband ISP Service Agreement* (Dec. 21,
    2001), *available at* http://www.ftc.gov/os/2002/02/index.htm
    (visited Feb. 19, 2002). The FTC has approved several of these
    agreements. FTC, *Application for Approval of a Non-Affiliated ISP
    and Alternative Cable Broadband ISP Service Agreement* Feb. 26,
    2002), *available at* http://www.ftc.gov/opa/2002/02/fyi0213.htm
    (visited Mar. 1, 2002).

[^197]: AOL Time Warner Jan. 22, 2002 Ex Parte at 3.

[^198]: *Id.*

[^199]: *Id.* at 4.

[^200]: *Id.*

[^201]: *See* NCTA Comments at 48, 50 (predicting in December 2000 that
    cable operators would, in the future, "enter into commercially
    reasonable agreements with unaffiliated ISPs"; explaining
    then-current "coordinated efforts by the cable operator and the
    \[affiliated\] Internet service \[provider\]").

[^202]: *See* *id.* at 18.

[^203]: No commenter claims that AOL Time Warner is providing any
    telecommunications or information service offering to an ISP.

[^204]: *See* AOL Time Warner Jan. 22, 2002 Ex Parte *passim*;
    authorities cited *infra* note Error: Reference source not found.

[^205]: The Commission has repeatedly found in various contexts that the
    definition of "telecommunications service" under the Act is
    equivalent to "common carrier" service. *See, e.g., Cable &
    Wireless, PLC*, File No. SCL-96-005, Cable Landing License, 12 FCC
    Rcd 8516, 8521 ¶13 (1997); *AT&T Submarine Systems, Inc*., File No.
    S-C-L-94-006, Memorandum Opinion and Order, 13 FCC Rcd 21585,
    21587-88 ¶ 6 (1998), *aff\'d*, Virgin Islands Tel. Co. v. FCC, 198
    F.3d 921 (D.C. Cir. 1999); *Federal-State Joint Board on Universal
    Service*, CC Docket No. 96-45, Report and Order, 12 FCC Rcd 8776,
    9177-78 ¶ 785 (1997), *aff\'d in part*, *reversed in part, and
    remanded in part*, *Texas Office of Public Utility Counsel v. FCC*,
    183 F.3d 393 (5th Cir. 1999), *cert. granted*, 530 U.S. 1213 (2000);
    Declaratory Ruling, 14 FCC Rcd 3040, 3042 ¶ 6 (1999), *remanded on
    other grounds, State of Iowa v. FCC*, 218 F.3d 756 (D.C. Cir. 2000).
    Moreover, the D.C. Circuit has held that the FCC\'s interpretation
    of \"telecommunications service\" as common carrier service is
    reasonable and permissible. *Virgin Islands Tel. Co. v. FCC*, 198
    F.3d 921, 926 (D.C. Cir. 1999).

[^206]: *See National Ass'n of Reg. Utils. Comm'rs v. FCC*, 525 F.2d
    630, 640 (D.C. Cir.), *cert. denied*, 425 U.S. 992 (1976) ("*NARUC
    I*"); *NARUC v. FCC*, 533 F.2d 601, 608-09 (D.C. Cir. 1976) ("*NARUC
    II*")*; Southwestern Bell Tel. Co. v. FCC*, 19 F.3d 1475, 1481 (D.C.
    Cir. 1994); *AT&T Submarine Systems, Inc. Application for a License
    to Land and Operate a Digital Submarine Cable System Between St.
    Thomas and St. Croix in the U.S. Virgin Islands*, File No.
    S-C-L-94-006, Memorandum Opinion and Order,13 FCC Rcd 21585,
    21588-89 ¶¶ 8-9 (1998), *aff'd*, *Virgin Islands Tel. Corp. v. FCC*,
    198 F.3d 921 (D.C. Cir. 1999); *NORLIGHT* *Request for Declaratory
    Ruling*, File No. PRB-LMMD 86-07, Declaratory Ruling, 2 FCC Rcd 132,
    133 ¶ 14 (1987). *See also* Cox Comments at 45-46; NCTA Comments at
    13-17.

[^207]: *NARUC II*, 533 F.2d at 608-09 (quotation marks omitted). *See
    also* authorities cited *supra* note Error: Reference source not
    found.

[^208]: *Southwestern Bell Tel. Co. v. FCC*, 19 F.3d 1475, 1481 (D.C.
    Cir. 1994); *see NARUC I*, 525 F.2d at 641 ("a carrier will not be a
    common carrier where its practice is to make individualized
    decisions, in particular cases, whether and on what terms to deal").

[^209]: *See* *supra* paras. 52-54.

[^210]: *See* AOL Time Warner Jan. 22, 2002 Ex Parte at 3 (referring to
    its "individually negotiated affiliation agreements" with ISPs), at
    4 (suggesting that AOL Time Warner intends to exercise its
    discretion in choosing which ISPs participate in its multiple ISP
    offerings to subscribers: "TWC also believes that this partnering
    arrangement works best for customers because TWC is putting its
    reputation on the line with every ISP it sells, both in the case of
    affiliated ISPs like AOL, and unaffiliated ones like EarthLink.").
    *See also AOL Time Warner Inc., Texas Networking, Inc., Petition for
    Declaratory Ruling and Complaint Regarding Violations of Merger
    Conditions and for Enforcement of Merger Conditions*, CS Docket No.
    00-30, AOL Time Warner Response and Opposition at 8 & n.22
    (describing part of AOL Time Warner's multiple ISP access
    activities, specifically a questionnaire for ISPs "to provide \[Time
    Warner Cable\] with information to help evaluate the companies which
    sought to enter into agreements with TWC. It requests basic
    information touching on matters related to the integrity, consumer
    acceptability and stability of a business and the people who run
    it.") (filed Sept. 4, 2001).

[^211]: *AT&T v. City of Portland*, 216 F.3d 871 (9th Cir. 2000)
    ("*Portland*"), *reversing* 43 F. Supp. 2d 1146 (D. Ore. 1999).

[^212]: *Id.* at 875.

[^213]: *Id.* at 876.

[^214]: *Id.* at 878.

[^215]: *Id.* at 876 (noting that "Portland premised its open access
    condition on its position that \@Home is a 'cable service' governed
    by the franchise").

[^216]: *Amicus* Brief of Federal Communications Commission, *AT&T Corp.
    v. City of Portland*, No. 99-35609, United States Court of Appeals
    for the Ninth Circuit, filed Aug. 16, 1999. *See also Portland*, 216
    F.3d at 876 ("We note at the outset that the FCC has declined, both
    in its regulatory capacity and as amicus curiae, to address the
    issue before us. Thus, we are not presented with a case involving
    potential deference to an administrative agency\'s statutory
    construction pursuant to the *Chevron* doctrine.").

[^217]: *See* Communications Act § 3(46), 47 U.S.C. § 153(46).

[^218]: *Non-Accounting Safeguards Remand*, 16 FCC Rcd at 9755 ¶ 8
    (stating that the categories of \"telecommunications service\" and
    \"information service\" are \"mutually exclusive"); *Universal
    Service Order*, 12 FCC Rcd at 9179-80 ¶¶ 788-90 (stating that
    information services are not inherently telecommunications services
    simply because they are offered via telecommunications).

[^219]: We also note that the Ninth Circuit's determination that cable
    modem service was in part a telecommunications service also
    recognized that the Commission "has broad authority to forbear" from
    regulation under § 10 of the Act, 47 U.S.C. § 160. *See Portland*,
    216 F.3d at 879. The United States District Court for the Southern
    District of California has applied the Ninth Circuit's determination
    that a cable operator providing Internet transmission is providing a
    telecommunications service and has held that that determination
    "mandates a deferral to the primary jurisdiction of the FCC on the
    enforcement of the common carrier obligations of the statute." The
    District Court referred specifically to the Commission's authority
    to forbear from regulating telecommunications services in certain
    circumstances. *GTE.Net LLC v. Cox Commun., Inc.*, Case No.
    00-CV-2289-J (BEN), Order Granting Motion to Stay and Denying Motion
    to Dismiss, slip op. at 7-9 (Jan. 29, 2002). Although we do not
    forbear from Title II regulation (to the extent other jurisdictions
    seek to apply it) on this record, we do tentatively conclude that
    such regulation would not be appropriate and that we should forbear
    from it. *See infra* para. 94.

[^220]: *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, CC Docket No. 96-98, Intercarrier
    Compensation for ISP-Bound Traffic, CC Docket No. 99-68,* Order on
    Remand and Report and Order ("*Intercarrier Compensation Order*")
    FCC 01-131 ¶ 52 (rel. Apr. 27, 2001), available at 2001 WL 455869,
    *petition for review pending, WorldCom, Inc. v. FCC*, D.C. Circuit
    Nos. 01-1218 *et al*.

[^221]: *Intercarrier Compensation Order,* *supra* note Error: Reference
    source not found at ¶ 52 (footnote omitted). *See also Southwestern
    Bell Tel. Co. v. FCC*, 153 F.3d 523, 543 (8th Cir. 1998) (affirming
    the jurisdictionally mixed nature of ISP-bound traffic*); GTE ADSL*,
    13 FCC Rcd at 22466 ¶ 1 (concluding "that \[GTE's ADSL service\],
    which permits Internet Service Providers (ISPs) to provide their end
    user customers with high-speed access to the Internet, is an
    interstate service and is properly tariffed at the federal level").

[^222]: *See Intercarrier Compensation Order*, *supra* note Error:
    Reference source not found, at ¶ 14 (noting longstanding rule that
    "the jurisdictional nature of ISP-bound traffic should be
    determined, consistent with Commission precedent, by the end points
    of the communication") (footnote omitted); *GTE ADSL*, 13 FCC Rcd at
    22478-79 ¶ 22.

[^223]: *See* Communications Act § 2(a); 47 U.S.C. 152(a) (granting the
    Commission jurisdiction over "all interstate and foreign
    communication by wire or radio and all interstate and foreign
    transmission of energy by radio, which originates and/or is received
    within the United States, and to all persons engaged within the
    United States in such communication or such transmission of energy
    by radio, . . ."). *See also infra* paras. 75-76 and *California v.
    FCC*, 39 F.3d 919, 932-33 (9^th^ Cir. 1994), *cert. denied*, 514
    U.S. 1050 (1995).

[^224]: *See* Communications Act §§ 3(7), 602(6), 47 U.S.C. §§ 153(7)
    and 522(6).

[^225]: 47 U.S.C. §522(6).

[^226]: Communications Act § 602(20), 47 U.S.C. §522(20).

[^227]: *Id*. § 602(14), 47 U.S.C. §522(14).

[^228]: *Id*. § 602(5), 47 U.S.C. § 522(5).

    A "cable system" is "a facility, consisting of a set of closed
    transmission paths and associated . . . equipment that is designed
    to provide cable service which includes video programming and which
    is provided to multiple subscribers within a community." *Id*. §
    602(7), 47 U.S.C. § 522(7). The Commission has concluded that "the
    term cable system as used in the Act encompasses only video delivery
    systems that employ cable, wire, or other physically closed or
    shielded transmission paths to provide service to subscribers . . .
    . Radio services that do not use such closed transmission paths at
    all . . . are therefore not cable systems under the Act."
    *Definition of a Cable Television System*, MM Docket No. 89-35,
    Report and Order, 5 FCC Rcd 7638, 7638 ¶ 5 (1990), *remanded in part
    on other grounds sub nom. Beach Commun., Inc. v. FCC*, 959 F.2d 975
    (D.C. Cir.), *further reconsidered on other grounds*, 965 F.2d 1103
    (D.C. Cir. 1992), *rev'd*, 508 U.S. 307 (1993). *Cf*. H.R. Conf.
    Rep. No. 485, 104^th^ Cong. 2d Sess. 113, 114, 116 (1996) ("Joint
    Explanatory Statement"), *reprinted in* 1996 U.S.C.C.A.N. 124, 125,
    127 (using "closed transmission" to refer to a transmission medium
    when explaining the term "telecommunications"). We disagree with
    EarthLink's suggestion in its Reply Comments at 20 n.63 that the
    term "closed transmission paths" in this definition provides
    guidance in interpreting the "cable service" definition. We find no
    basis for concluding that the term was intended by Congress to have
    significance beyond describing the physical facilities of a cable
    system.

[^229]: *See* H.R. Rep. No. 934, 98^th^ Cong. 2d Sess. 22, 27 (1984)
    ("1984 House Report"), *reprinted in* 1984 U.S.C.C.A.N. 4655, 4659,
    4664.

[^230]: *See* 1984 House Report at 27, 1984 U.S.C.C.A.N. at 4664.

[^231]: 1984 House Report at 41, 1984 U.S.C.C.A.N. at 4678.

[^232]: *See* Communications Act § 621(c), 47 U.S.C. § 541(c) ("Any
    cable system shall not be subject to regulation as a common carrier
    or utility by reason of providing any cable service."); *id*. §
    621(d)(2), 47 U.S.C. § 541(d)(2) ("Nothing in this title \[VI\]
    shall be construed to affect the authority of any State to regulate
    any cable operator to the extent that such operator provides any
    communication service other than cable service, whether offered on a
    common carrier or private contract basis."); 1984 House Report at
    29, 41, 1984 U.S.C.C.A.N. at 4666, 4678. *See also* Communications
    Act § 624(a), 47 U.S.C. § 544(a) ("\[a\]ny franchising authority may
    not regulate the services, facilities, and equipment provided by a
    cable operator except to the extent consistent with this title
    \[VI\]").

[^233]: *See Telephone Company-Cable Television Cross-Ownership Rules,
    Sections 63.54-63.58*, CC Docket No. 87-266, Memorandum Opinion and
    Order on Reconsideration ("*Video Dialtone Reconsideration*"), 7 FCC
    Rcd 5069, 5071 ¶ 16, 5072 ¶ 18 (1992), *aff'd, National Cable
    Television Ass'n. v. FCC* ("*NCTA v. FCC*"), 33 F.3d 66, 73 (D.C.
    Cir. (1994). *See also Telephone Company-Cable Television
    Cross-Ownership Rules, Sections 63.54-63.58*, CC Docket No. 87-266,
    Memorandum Opinion and Order on Reconsideration and Third Further
    Notice of Proposed Rulemaking, 10 FCC Rcd 244, 290-91 ¶ 97 (1994)
    (traditional cable operators "select or provide the video
    programming available to subscribers"); Second Report and Order,
    Recommendation to Congress, and Second Further Notice of Proposed
    Rulemaking ("*Video Dialtone Second Report*"), 7 FCC Rcd 5781, 5817
    ¶ 69 (1992) (cable operators select video programming "by owning,
    exercising editorial control over, or having cognizable financial
    interests in, video programming" and "by making decisions concerning
    the price of video program offerings and by bundling, packaging, and
    creating tiers of video programming"); 1984 House Report at 43, 1984
    U.S.C.C.A.N. at 4680 (stating that the options or categories
    available as cable services would "be created by the cable operator
    or programming service provider and made generally available to all
    subscribers" and would be "delineated by the cable operator or the
    programming service provider"). The 1996 Act amendments to the
    Communications Act affecting video dialtone did not alter the
    analysis of "cable service" in the *Video Dialtone* proceeding or in
    *NCTA v. FCC*.

[^234]: *See Video Dialtone Reconsideration*, 7 FCC Rcd at 5071-72;
    *NCTA v. FCC*, 33 F.3d at 71; *see also Entertainment Connections,
    Inc*. ("*ECI*"), 13 FCC Rcd 14277, 14303 ¶ 55, 14311 ¶ 73 (1998),
    *review denied sub nom. City of Chicago v. FCC*, 199 F.3d 424 (7^th^
    Cir. 1999), *cert. denied,* 531 U.S. 825 (2000).

[^235]: AT&T Comments at 10-11, 14; National League of Cities Comments
    at 9 n.10. *See* 1984 House Report at 42, 1984 U.S.C.C.A.N. at 4679
    (the cable operator need not create the content itself; "the
    provision of information over a cable system by a channel lessee or
    by the cable operator through a joint venture or other commercial
    arrangement would be a cable service if it met all other criteria
    for being a cable service"). We note that operator control is
    specifically limited by statute with respect to channels made
    available for public, educational and governmental access (section
    611) and leased access (section 612), and in the conditions
    governing carriage of the signals of television broadcast stations
    (sections 614 and 615), 47 U.S.C. §§ 531, 532, 534, 535.

[^236]: Internet video, called \"streaming video\" because data are
    "streamed\" over the Internet to provide continuous motion video,
    has not yet achieved television quality. *See Annual Assessment of
    the Status of Competition in the Market for the Delivery of Video
    Programming*, CS Docket No. 00-132, Seventh Annual Report, 16 FCC
    Rcd 6005, 6054 ¶ 107 & n.379 (2001); *see also* *supra* note 39.
    Streaming video, therefore, is not consistent with the definition of
    video programming. Even if streaming video does achieve television
    quality, it would not be treated as a cable service unless it
    otherwise falls within the definition of "cable service."

[^237]: *See e.g.*, AT&T Reply Comments at 30; EarthLink Reply Comments
    at 15. *See generally Internet Ventures,* 15 FCC Rcd 3247 (denying
    access to a leased channel for Internet access service because the
    varied array of services comprising the service today are not
    limited to "video programming," the only use for which leased
    channels are available under section 612 of the Act, 47 U.S.C. §
    532).

[^238]: 47 U.S.C. § 522(14).

[^239]: 1984 House Report at 41, 1984 U.S.C.C.A.N. at 4678.

[^240]: *See id*. at 41-42, 1984 U.S.C.C.A.N. at 4678-79 ("If
    information transmitted on a cable system is made available only to
    an individual subscriber or to a discrete group of subscribers, the
    transmission of this information is not a cable service.").

[^241]: Pub. L. No. 98-549 § 2, 98 Stat. 2779, 2780 (1984) (text of new
    section 602(5)(B) defining "cable service"); *see* 1984 House Report
    at 43, 1984 U.S.C.C.A.N. at 4680.

[^242]: *See* 1984 House Report at 42, 1984 U.S.C.C.A.N. at 4679 ("In
    general, services providing subscribers with the capacity to engage
    in transactions or to store, transform, forward, manipulate, or
    otherwise process information or data would not be cable
    services.").

[^243]: According to the legislative history, examples of software
    programs included computer or video games or statistical packages
    stored off-premises. The transmission and downloading of software
    programs, video games, and statistical packages to personal
    computers could be a cable service if the information were made
    available to all subscribers and not used interactively over the
    cable system. *Id*. at 42, 1984 U.S.C.C.A.N. at 4679.

[^244]: *Id*. at 42-43, 1984 U.S.C.C.A.N. at 4679-80.

[^245]: *See Video Dialtone Second Report,* 7 FCC Rcd at 5821 ¶ 75
    (addressing the definition of "video programming" in the context of
    adopting video dialtone rules). Because video programming and
    non-video information are treated comparably in the statute, the
    reasoning the Commission applied to "video programming" in *Video
    Dialtone Second Report* is applicable to non-video information as
    well.

[^246]: *Id*.

[^247]: Pub. L. No. 104-104 § 301(a)(1), 110 Stat. 56, 114, 47 U.S.C. §
    552(6)(B) (emphasis added).

[^248]: *See* Comcast Comments at 17; Cox Aug. 15, 2001 Ex Parte at 7;
    NCTA Comments at 6; National League of Cities Comments at 9. Others
    argue that the amendment simply reflects the evolution of two-way
    video services, game channels, or program guides, but makes no
    fundamental change to the meaning of "cable service." *See* Texas
    Office of Public Utility Counsel Reply Comments at 18 ("Congress
    wanted to accommodate interactivity that might surround one-way
    video services"); OpenNET Comments at 7-8 (information received by
    subscribers must be available to all subscribers generally);
    WorldCom Reply Comments at 30.

[^249]: *NCTA v. FCC*, 33 F.3d at 72.

[^250]: *See* Communications Act § 602(6)(A), 47 U.S.C. § 522(6)(A).

[^251]: *See* *id.*§ 602(14), 47 U.S.C. § 522(14).

[^252]: Joint Explanatory Statement at 169, 1996 U.S.C.C.A.N. at 182.
    The conferees added, "This amendment is not intended to affect
    Federal or State regulation of telecommunications service offered
    through cable system facilities, or to cause dial-up access to
    information services over telephone lines to be classified as a
    cable service." The House, whose version of the amendment was
    adopted in conference, had explained the addition of the term "or
    use" only as "reflecting the evolution of video programming toward
    interactive services." *Id*. at 167, 1996 U.S.C.C.A.N. at 180. Some
    commenters also cite Representative Dingell's remarks during the
    floor debates, which state that "\[t\]his conference agreement
    strengthens the ability of local governments to collect fees for the
    use of public right-of-way. For example, the definition of the term
    'cable service' has been expanded to include game channels and other
    interactive services." *See* National League of Cities Comments at
    6-7 (quoting 142 Cong. Rec. H1156 (daily ed. Feb. 1, 1996) (remarks
    of Rep. Dingell)).

[^253]: *See* WorldCom Comments at 10 (disputing that these types of
    activities are cable service); WorldCom Reply Comments at 28
    (arguing that subscriber interaction is the essence of Internet
    service, not merely ancillary to a one-way service). *See also*
    EarthLink Reply Comments at 20 n.64 (stating that the AT&T Website
    Agreement it found at www.att.com/terms shows that AT&T does not
    control the information available through its cable modem service).

[^254]: *See* AT&T Comments at 13; Cox Aug. 15, 2001 Ex Parte at 6-7
    (advocating that providing Internet capability satisfies the
    requirement that the operator make the information generally
    available).

[^255]: *See* NATOA Comments at 8 n.11.

[^256]: *See* AT&T Comments at 16 n.22.

[^257]: *See* *id*. at 11.

[^258]: *See* Cox Aug. 15, 2001 Ex Parte at 7. Cox and AT&T also argue
    that cable modem service would be classified as "cable service"
    under the 1984 definition because on-line computer services were
    included in the "other programming service" category in the original
    definition. *Id.* at 6; AT&T Comments at 13. The 1984 House Report
    describes transmitting and downloading computer software, such as
    computer games or statistical packages, for use on personal
    computers as a cable service; on-line interactivity, such as data
    base searching, fell outside the definition. 1984 House Report at
    42-43, 1984 U.S.C.C.A.N. at 4679-80.

[^259]: The FCC Local State Government Advisory Committee ("LSGAC")
    argues that "there is nothing inconsistent about a service being
    simultaneously a 'cable service' and an 'information service'. In
    fact\--all cable services offered by a cable operator appear to be
    'information services' because cable services offer 'the capability
    for . . . making available information via telecommunications, and
    includes electronic publishing.'" LSGAC, Advisory Recommendation No.
    26, In the Matter of Inquiry Concerning High Speed Cable Access to
    the Internet Over Cable and Other Facilities, GN Docket No. 00-185
    (Feb. 5, 2002) ("LSGAC Advisory Recommendation No. 26"), at 1-2,
    transmitted by letter from Kenneth S. Fellman, Chairman, LSGAC, to
    Magalie Roman Salas, Secretary, FCC (Feb. 5, 2002), transmitted by
    letter from Elizabeth Jackson for Kenneth S. Fellman to Dr. Emily
    Hoffnar, FCC (Feb. 5, 2002). Even if there is an overlap between
    cable services and information services, however, this would not
    make all information services cable services. As discussed above,
    offering the capability for making information available does not
    establish that the operator controls the selection and distribution
    of the information and that the information is generally available
    as required for a cable service.

[^260]: EarthLink Comments at 11.

[^261]: *See* AT&T Comments at 10-11, 14-15; Cox Aug. 15, 2001 Ex Parte
    at 8 (stating that cable operators offer "a cable modem service that
    integrates high-speed Internet access, content, information and
    services"). *Compare* OpenNET Reply Comments at 9-10 (contending
    that customer using cable modem service does not need proprietary
    home page) *with* AT&T Reply Comments at 31-32 (stating that it is
    irrelevant that subscribers can bypass the cable operator's home
    page as long as the information is made available to subscribers).

[^262]: *See* AT&T Comments at 14 (arguing that if any part of cable
    modem service can be classified as a cable service, the service in
    its entirety should be classified as a cable service).

[^263]: NCTA Reply Comments at 7 (citing 1984 House Report at 44, 1984
    U.S.C.C.A.N. at 4681; *Universal Service Report*, 13 FCC Rcd at
    11536, 11539 ¶¶ 75, 79).

[^264]: 1984 House Report at 41, 1984 U.S.C.C.A.N. at 4678; Joint
    Explanatory Statement at 169, 1996 U.S.C.C.A.N. at 182.

[^265]: Internet Tax Freedom Act, Pub. L. No. 105‑277, Div. C, Title XI,
    §§ 1100-1104, 112 Stat. 2681‑719 (1998), 47 U.S.C. § 151 note
    ("Internet Tax Freedom Act").

[^266]: *Id*. § 1101(a)(1).

[^267]: *Id*. § 1104(8)(A).

[^268]: *Id*. § 1104(8)(B). It also exempts fees for open video systems
    operating pursuant to Communications Act § 653, 47 U.S.C. § 573, and
    any other fee related to obligations or telecommunications carriers
    under the Communications Act. *Id*.

[^269]: *See* Los Angeles Comments at 16; National League of Cities
    Comments at 10-11.

[^270]: *United States v. Price*, 361 U.S. 304, 313 (1960).

[^271]: National League of Cities Comments at 10.

[^272]: AT&T Comments at 29-30. *See also* ACA Comments at 15 ("advanced
    service").

[^273]: *Second 706 Report*, 15 FCC Rcd at 20920 ¶ 11.

[^274]: Section 706 of the 1996 Act, *supra* note Error: Reference
    source not found, requires that the "Commission . . . encourage the
    deployment on a reasonable and timely basis of advanced
    telecommunications capability to all Americans (including, in
    particular, elementary and secondary schools and classrooms) by
    utilizing, in a manner consistent with the public interest,
    convenience, and necessity, price cap regulation, regulatory
    forbearance, measures that promote competition in the local
    telecommunications market, or other regulating methods that remove
    barriers to infrastructure investment."

[^275]: SBC/BellSouth Comments at 13-24; Communications Act §§ 1, 2(a),
    47 U.S.C. §§ 151, 152(a).

[^276]: The proceeding initiated by our Notice in GN Docket No. 00-185
    is left open only to the extent that the Notice raised issues that
    are also raised in this notice of proposed rulemaking.

[^277]: *See supra* paras. 4-6.

[^278]: *Wireline Broadband NPRM, supra* note Error: Reference source
    not found, at ¶ 3.

[^279]: *See* *supra* note Error: Reference source not found.

[^280]: *See* Communications Act § 230(b)(2), 47 U.S.C. § 230(b)(2).

[^281]: *See Wireline Broadband NPRM, supra* note Error: Reference
    source not found, at ¶ 5.

[^282]: The Notice stated: "Under one open access model, no particular
    connecting ISP has a privileged or preferred relationship with the
    cable operator; rather, each ISP purchases transmission capability
    and customer access from the cable operator on nondiscriminatory
    prices, terms and conditions, and the cable operator manages the
    network on a nondiscriminatory basis. Under a second open access
    model, multiple ISPs purchase transmission capability and customer
    access from the cable operator on nondiscriminatory prices, terms,
    and conditions, but an affiliated or preferred ISP manages the
    network on a nondiscriminatory basis. Under a third model, multiple
    unaffiliated ISPs would obtain access to the cable modem platform
    according to agreements negotiated between those ISPs and cable
    operators." *Notice*, 15 FCC Rcd at 19299-300 ¶¶ 30-31.

    The Notice, in the passage quoted above, assumed that multiple ISP
    access would involve the ISP purchasing transmission capability from
    the cable operator. The comments herein and recent experience
    suggest, however, that multiple ISP access would not necessarily
    involve a purchase of transmission capability.

[^283]: *See, e.g.,* Consumer and ISP Representatives Comments at 3,
    11-14; George Mason University, Mercatus Center, Regulatory Studies
    Program Comments at 4-5; New Hampshire ISP Association Comments at
    7.

[^284]: *See, e.g*., AT&T Comments at 82; CIX Comments *passim*
    (advocating some oversight by the Commission); New Hampshire ISP
    Association Reply Comments at 2-5.

[^285]: *See, e.g*., Brand X Internet Comments at 3-4; LavaNet Comments
    at 2.

[^286]: *See, e.g*., Consumer and ISP Representatives Comments at 3,
    6-10; Consumers Union *et al.* Comments at 22.

[^287]: *See, e.g.*, ASCENT Comments at 13-18; Consumers Union *et al.*
    Comments at 20-22.

[^288]: *See supra* note Error: Reference source not found.

[^289]: *United States v. Southwestern Cable Co*., 392 U.S. 157, 178
    (1968). *See also FCC v. Midwest Video Corp*., 440 U.S. 689 (1979);
    *United States v. Midwest Video Corp*., 406 U.S. 649 (1972)
    ("*Midwest Video*"); *Promotion of Competitive Networks in Local
    Telecommunications Markets, Wireless Commun. Ass'n Int'l, Inc.,
    Petition to Amend Section 1.4000 of the Commission's Rules*, First
    Report and Order and Further Notice of Proposed Rulemaking in WT
    Docket No. 99-217, Fifth Report and Order and Memorandum Opinion and
    Order in CC Docket No. 96-98, and Fourth Report and Order and
    Memorandum Opinion and Order in CC Docket No. 88-57 ("*Competitive
    Networks*"), 15 FCC Rcd 22983, 23028-29 ¶ 101 and n.261 (2000).

[^290]: *See* Communications Act § 1, 47 U.S.C. § 151.

[^291]: *See* Communications Act § 2(a), 47 U.S.C. § 152(a).

[^292]: *See* Communications Act § 4(i), 47 U.S.C. § 154(i).

[^293]: *Midwest Video*, 440 U.S. at 706.

[^294]: *See, e.g.,* *Computer II Final Decision*, 77 FCC2d at 432
    (1980), *aff'd*, *Computer and Commun. Indus. Ass'n v. FCC*, 693
    F.2d 198 (D.C. Cir. 1982), *cert. denied*, 461 U.S. 938 (1983). *See
    also Non-Accounting Safeguards Order*, 11 FCC Rcd at 21955 ¶ 102
    (1996) ("all of the services that the Commission has previously
    considered to be 'enhanced services' are 'information services'").

[^295]: *See, e.g., Competitive Networks*, 15 FCC Rcd at 23029 ¶ 102,
    23042 ¶ 134 & n.318 (asserting Title I jurisdiction over customer
    premises antennas used for fixed wireless signals); *Implementation
    of Sections 255 and 251(a)(2) of the Communications Act of 1934, as
    Enacted by the Telecommunications Act of 1996, Access to
    Telecommunications Service, Telecommunications Equipment and
    Customer Premises Equipment by Persons with Disabilities,* WT Docket
    No. 96-198, Report and Order and Further Notice of Inquiry, 16 FCC
    Rcd 6417, 6457 ¶ 98 (1999) (asserting Title I jurisdiction to
    regulate information services generally, whether provided by
    carriers or non-carriers, and to impose disability access rules on
    the offering of "voicemail and interactive menu services, and
    related equipment"); *Computer II Final Decision,* 77 FCC2d at 432,
    461-86 (asserting Title I jurisdiction over enhanced services and
    imposing structural separation on AT&T provision of enhanced
    services).

[^296]: *United States v. Southwestern Cable Co*., 392 U.S. 157 (1968);
    *Southwestern Bell Tel. Co. v. FCC*, 19 F.3d 147 (D.C. Cir. 1994);
    *NARUC II*, *supra* note Error: Reference source not found.

[^297]: *Wireline Broadband NPRM*, *supra* note Error: Reference source
    not found.

[^298]: *See* Communications Act § 1, 47 U.S.C. § 151.

[^299]: *See* Communications Act § 230(b) (1, 2) , 47 U.S.C. § 230(b)
    (1, 2) (including "to promote the continued development of the
    Internet and other interactive computer services and other
    interactive media" and "to preserve the vibrant and competitive free
    market that presently exists for the Internet and other interactive
    computer services, unfettered by Federal or State regulation").

    We have relied on § 230 for guidance in making many decisions. *See,
    e.g.*, *FCC AOL Time Warner Merger Order*, 16 FCC Rcd at 6603 ¶ 128;
    *Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996*, Declaratory Ruling in CC Docket No.
    96-98 and Notice of Proposed Rulemaking in Docket No. 99-68, 14 FCC
    Rcd 3689, 3693 ¶ 6 (1999); *Access Charge Reform*, CC Docket No.
    96-262, First Report and Order, 12 FCC Rcd 15982, 16133 ¶ 344
    (1997); Notice of Proposed Rulemaking, Third Report and Order, and
    Notice of Inquiry, 11 FCC Rcd 21354, 21477 ¶ 282 (1996).

[^300]: *See* Communications Act § 601(4), 47 U.S.C. § 521(4).

[^301]: *See supra* note Error: Reference source not found.

[^302]: The First Amendment provides that "Congress shall make no law .
    . . abridging the freedom of speech, or of the press . . ." U.S.
    Const. Amend. I. *Compare* Comcast Comments at 26; Cox Comments at
    47-50; NCTA Comments at 38-39, NCTA Reply Comments at 3; Verizon
    Comments at 35-38 *with* Consumers Union Comments at 6-9; NATOA
    Comments at 18. *See also* David Wolitz, *Open Access and the First
    Amendment: A Critique of Comcast Cablevision of Broward County, Inc.
    v. Broward County*, 4 [Yale Symp. L. & Tech]{.smallcaps} 6 (2001)
    (arguing that the First Amendment does not prohibit multiple ISP
    access regulations similar to those promulgated by Broward County
    and litigated in *Comcast Cablevision of Broward County, Inc. v.
    Broward County*, 124 F. Supp. 2d 685 (S.D. Fla. 2000)); Harold Feld,
    *Whose Line Is It Anyway? The First Amendment and Cable Open
    Access*, 8 [CommLaw Conspectus]{.smallcaps} 23 (2000) (arguing that
    the First Amendment authorizes but does not require the federal
    government and local franchise authorities to impose multiple ISP
    access conditions on cable operators).

[^303]: *See, e.g.,* *Satellite Broadcasting & Commun. Ass'n v. FCC*,
    2001 WL 1557809 (4th Cir., Dec. 7, 2001), *aff'g* 146 F. Supp. 2d
    803 (E.D. Va. 2001); *Time Warner Ent. Co. v. FCC,* 240 F.3d 1126
    (D.C. Cir. 2001).

[^304]: *See Carriage of Digital Television Broadcast Signals, CS Docket
    No. 98-120, Local Broadcast Signal Carriage Issues, CS Docket No.
    00-96, Application of Network Non-Duplication, Syndicated
    Exclusivity and Sports Blackout Rules to Satellite Transmission of
    Broadcast Signals, CS Docket No. 00-2*, First Report and Order and
    Further Notice of Proposed Rule Rulemaking, FCC 01-22 ¶¶ 112-15
    (rel. Jan. 23, 2001), available at 2001 WL 69391 (tentatively
    concluding that the mandatory simultaneous carriage of both a
    television station\'s digital and analog signals may burden cable
    operators\' First Amendment interests substantially more than is
    necessary to further the legitimate interests).

[^305]: *See, e.g.,* Charter Reply Comments at 34; Cox Comments at
    50-51. The relevant portion of the Fifth Amendment provides: " . . .
    nor shall private property be taken for public use, without just
    compensation." U.S. Const. Amend. V.

[^306]: *See supra* paras. 20-29.

[^307]: *See supra* para. 26.

[^308]: *See supra* note Error: Reference source not found.

[^309]: Comcast, *Comcast and United Online to Offer NetZero and Juno
    High-Speed Internet Service* (press release), Feb. 26, 2002.

[^310]: AT&T Comcast Corp., SEC Filing S-4, Feb. 11, 2002 (containing
    Exchange Agreement dated as of Dec. 7, 2001, between Microsoft Corp.
    and Comcast Corp).

[^311]: *See supra* note Error: Reference source not found.

[^312]: *See supra* note Error: Reference source not found.

[^313]: Communications Act §§ 651, 653, 47 U.S.C. §§ 571, 573.

[^314]: In this context, we refer to \"intramodal\" competition as
    competition among providers using the same type of facilities
    (*e.g.*, incumbent and competitive Local Exchange Carriers ("LECs"),
    cable operators and overbuilders). \"Intermodal\" competition is
    competition among providers using different types of facilities
    (*e.g.*, LECs and cable operators).

[^315]: *See Wireline Broadband NPRM, supra* note Error: Reference
    source not found, at ¶ 6 ("the Commission will strive to develop an
    analytical framework that is consistent, to the extent possible,
    across multiple platforms").

[^316]: *See* Adelphia Reply Comments at 7 n.23 (stating that "Adelphia
    is not aware of a single allegation in the comments that Adelphia,
    or any other operator, has actually engaged in any activity designed
    to 'relegate' certain sites to the 'slow' lane. Indeed, . . . the
    capability to engage in the posited behavior exists in any ISP.");
    Comcast Comments at 31 (opining that the "openness that really
    matters to customers -- and what makes the Internet so special and
    remarkable -- is the ability to go anywhere, to access any
    information with a single click of a mouse. That openness exists
    with cable Internet today."); Cox Comments at 19 (stating that "once
    connected \[to the Internet\], moreover, \[consumers\] are able to
    visit any website and access any information (or ISP) they desire").
    The Center for Democracy and Technology, a proponent of multiple ISP
    access that conducted a large study of the broadband business,
    concluded only that there was "a *theoretical* but cognizable risk
    of content censorship in the absence of mandated open access."
    Center for Democracy and Technology Comments at 5 (italics added).

[^317]: We are struck by the complexity of the proposals for multiple
    ISP access advocated by some commenters. *See supra* notes Error:
    Reference source not found-Error: Reference source not found. *See
    also* AT&T Reply Comments at 17-26; Big Planet Comments at 14;
    Center for Democracy & Technology Comments at 16-18; Charter Reply
    Comments at 33-36.

[^318]: *See supra* note 29.

[^319]: *See supra* note Error: Reference source not found.

[^320]: *See Wireline Broadband NPRM*, *supra* note Error: Reference
    source not found, at ¶ 50.

[^321]: *See supra* paras. 26-29.

[^322]: Adelphia Reply Comments at 10-11 (listing unresolved technical
    issues in multiple ISP access).

[^323]: *See also* AeA Comments at 11 (stating that "agreements, which
    reflect commercial reality, are preferable to the imposition of a
    one-size fits all common carrier approach"); Comcast Comments at 38
    (noting the uncertainty about how many subscribers will place the
    greatest value on ease of searching, instant messaging capabilities,
    vast amounts of proprietary content, backbone capacity, or filtering
    out offensive content); NCTA Comments at 63-64 (same). *See also*
    *Universal Service Report*, 13 FCC Rcd at 11524 ¶ 46, 11540 ¶ 82.

[^324]: As previously noted, the FTC and this Commission have separately
    analyzed the question of whether the AOL Time Warner merger created
    market conditions warranting intervention applicable to the merged
    firm. *See supra* note Error: Reference source not found.

[^325]: Communications Act § 3(46), 47 U.S.C. § 3(46).

[^326]: *See supra* paras. 42-43.

[^327]: Communications Act § 10, 47 U.S.C. § 160.

[^328]: *See supra* note Error: Reference source not found.

[^329]: *GTE.Net LLC v. Cox Commun., Inc.*, Case No. 00-CV-2289-J (BEN),
    Order Granting Motion to Stay and Denying Motion to Dismiss, slip.
    op. at 10 (Jan. 29, 2002).

[^330]: Communications Act § 10, 47 U.S.C. § 160.

[^331]: *See supra* paras. 38--39.

[^332]: *See* authorities cited *supra* note Error: Reference source not
    found.

[^333]: *See* Communications Act § 2(a), 47 U.S.C. § 152(a).

[^334]: *See* 47 U.S.C. § 157 note, §230(b)(1), (2).

[^335]: *See* *supra* Section IV. B. *See generally* LSGAC Advisory
    Recommendation No. 26, at 2-3 (Title VI provides local governments
    with sufficient authority to address competition between affiliated
    and unaffiliated content providers, play a meaningful role in
    overseeing the deployment of advanced cable services, and ensure
    that providers of advanced services address local and specific
    community needs and interests).

[^336]: *See California v. FCC*, 39 F.3d 919, 931-33 (9^th^ Cir. 1994);
    *Computer and Communications Industry Ass'n v. FCC*, 693 F.2d 198,
    214-218 (D.C. Cir. 1982), *cert. denied*, 461 U.S. 938 (1983).

[^337]: 47 U.S.C. § 544(b)(1).

[^338]: *See* Communications Act §§ 613(d), 617, 47 U.S.C. §§ 533(d),
    537. Access conditions imposed by Portland and Multnomah County,
    Oregon and Henrico County, Virginia were overturned pursuant to
    section 621(b), 47 U.S.C. § 541(b) as beyond the franchisors' Title
    VI authority. *See* *MediaOne Group, Inc. v. County of Henrico*
    ("*Henrico County*"), 257 F.3d 356, 363-64 (4^th^ Cir. 2001) (access
    requirement compelling the cable operator to offer the platform
    separately for the use of unaffiliated ISPs impermissibly required
    the cable operator to provide telecommunications facilities);
    *Portland*, 216 F.3d at 877-880 (the transport function of cable
    modem service was a separate telecommunications service, which could
    not be addressed pursuant to cable franchising authority conferred
    by Title VI). A Broward County, Florida ordinance requiring all
    cable operators offering cable modem service to provide open access
    was overturned based on First Amendment considerations and was
    withdrawn in a subsequent settlement agreement. *See* *Comcast
    Cablevision of Broward County, Inc. v. Broward County*, 124 F. Supp.
    2d 685 (S.D. Fla. 2000); *Broward County Settles Open Access Lawsuit
    with AT&T, Comcast*, [Communications Daily]{.smallcaps}, April 17,
    2001. In other cases, franchising authorities considering multiple
    ISP access requirements determined that present and future
    competition for broadband Internet services obviated the need for a
    mandatory access requirement. *See supra* note Error: Reference
    source not found. As discussed *supra* para. 26, several cable
    operators have announced their intentions to accommodate multiple
    ISPs.

[^339]: *See* Communications Act § 253(c), 47 U.S.C. § 253(c)
    (preserving for State and local governments authority over
    rights-of-way); Communications Act § 602(7)(B), 47 U.S.C. §
    522(7)(B) (excluding from definition of cable system subject to
    franchising authority a facility that serves subscribers without
    using any public right-of-way); *TCI Cablevision of Oakland County,
    Inc.*, Petition for Declaratory Ruling, Preemption and Other Relief
    Pursuant to 47 U.S.C. §§ 541, 544(e), and 253, CSR-4790, Memorandum
    Opinion and Order ("*Troy Decision*"), 12 FCC Rcd 21396, 21441-42
    (1997), *reconsideration denied*, ("*Troy Reconsideration Order*")
    13 FCC Rcd 16400, 16414 ¶ 43 (1998); *Definition of a Cable
    Television System*, MM Docket No. 89-35, Report and Order, 5 FCC Rcd
    7638, 7639 ¶ 10 (1990).

[^340]: Communications Act § 601(2)-(3), 47 U.S.C. §521(2)-(3).

[^341]: 47 U.S.C. §541(a)(2).

[^342]: 47 U.S.C. § 544(b)(1). *See* 1984 House Report at 68, 1984
    U.S.C.C.A.N. at 4705.

[^343]: 47 U.S.C. § 544(a).

[^344]: *Troy Decision*, 12 FCC Rcd at 21429 ¶ 78 (conditions imposed on
    grant of construction permits for cable system upgrades limiting use
    of the system for telecommunications services were found to violate
    § 621(b)(3)(B)).

[^345]: *See generally Troy Decision***,** 12 FCC Rcd at 21440-41 ¶ 102;
    *Promotion of Competitive Networks in Local Telecommunications
    Markets*, 14 FCC Rcd 12673, 12714-15 (1999).

[^346]: *See* *Troy Decision*, 12 FCC Rcd at 21442 ¶ 107.

[^347]: Comcast Comments at 41; CCTA Reply Comments at 4-11 (citing to
    local franchising authority and State government attempts to impose
    access and other requirements on cable modem service, and expressing
    concern that some cities will seek to expand their jurisdiction over
    cable modem service generally and that competitors will leverage the
    local regulatory process to seek access requirements, or customer
    service or technical standards underwritten by competitors).

[^348]: *See* National League of Cities, et al. Comments at 13 ("the
    cost . . . in lost franchise fees would be staggering"); Marin
    Comments at 7 ("\[t\]he failure to classify cable modem service as a
    cable service will have very adverse financial and regulatory
    consequences for public agencies"); New Orleans Comments at 4, 10
    (cable modem service is a cable service and cable operators must pay
    franchise fees on revenues from this service); NATOA Comments at 22
    (local authority to manage and receive compensation for access to
    public rights-of-way is recognized in the Communications Act); NATOA
    Reply Comments at 33-34 (anticipating consumer complaints regarding
    cable modem service and noting that the Commission previously
    expanded the franchise fee revenue base to include pay-per-view
    programming, leased access, and advertising revenues largely because
    of franchise authority responsibilities to investigate and resolve
    complaints about these services).

[^349]: 47 U.S.C. § 542(b).

[^350]: *See* Internet Tax Freedom Act §§ 1101(a), 1104, 112 Stat.
    2681-719, 2681-724-726, 47 U.S.C.A. § 151 note. The Internet Tax
    Freedom Act imposed a moratorium on the ability of State or local
    governments to impose new taxes on Internet access. This moratorium
    has been extended through November 1, 2003. Internet Tax
    Nondiscrimination Act, Pub. L. No. 107-75, 115 Stat. 703 (2001).
    Franchise fees imposed pursuant to sections 622 and 653 of the
    Communications Act, 47 U.S.C. §§ 542, 573, for cable services and
    open video systems, respectively, and any other fee related to
    obligations of telecommunications carriers under the Communications
    Act were not considered to be taxes subject to the moratorium.
    Internet Tax Freedom Act § 1104(8)(B).

[^351]: *See* CCTA Reply Comments at 12-13 ("both operators and
    franchise authorities find themselves caught in the middle"); Cox
    Reply Comments at 2 n.4; National League of Cities Reply Comments,
    Attachment (Letter from Kathi Noe, Director, Government Affairs,
    AT&T Broadband, to Janet Freeland, Senior Financial Analyst, Real
    Property Division, City of Palo Alto, Cal. (Dec. 15, 2000)) at 2
    ("Suspension of franchise fees on \@Home is particularly important
    in states within the Ninth Circuit, because of the existence of
    State consumer protection laws which often give rise to class action
    or other litigation. Such lawsuits might seek a refund of any fees
    not lawfully collected . . . ."); *id*. (Letter from Stanford T.
    Inouye, Area Franchise Manager, AT&T Broadband, to Pam Berrian,
    Franchise Manager, City of Eugene, Or. (Dec. 13, 2000)) (same).

[^352]: *See, e.g.* Cox Reply Comments at 2 & n.4.

[^353]: *See* Letter from David E. Mills, Dow, Lohnes & Albertson,
    Counsel to Cox, to W. Kenneth Ferree, Chief, Cable Services Bureau,
    FCC (Oct. 16, 2001), referring to pending litigation captioned *Bova
    v. Cox Communications, Inc.*, Civil Action No. 7:01 CV 00090 (W.D.
    VA.) (class action seeking recovery of franchise fees collected on
    cable modem service).

[^354]: *Amendment of Parts 1, 63 and 76 of the Commission's Rules to
    Implement the Provisions of the Cable Communications Policy Act of
    1984*, MM Docket No. 84-1296, Memorandum Opinion and Order, 104 FCC
    2d 386, 393 ¶¶ 18-19 (1986), *aff'd on this point sub nom. ACLU v.
    FCC*, 823 F.2d 1554, 1573-75 (D.C. Cir. 1987); *see also Time Warner
    Entertainment/Advance-Newhouse Partnership and the City of Orlando,
    Florida*, Petitions for Declaratory Ruling on Franchise Fee Issues,
    Memorandum Opinion and Order, 14 FCC Rcd 7678 (1999).

[^355]: *Henrico County*, 257 F.3d at 365.

[^356]: *See* NATOA Comments at 20-21; National League of Cities, et al.
    Comments at 13-14.

[^357]: *See* Communications Act § 632(a), 47 U.S.C. § 552(a).

[^358]: *See* 47 U.S.C. § 552(d)(1), (2); *see also* 47 C.F.R. §§
    76.309, 76.1602, 76.1603.

[^359]: Communications Act § 224, 47 U.S.C. § 224.

[^360]: *Gulf Power*, 112 S.Ct. at 786, 787-88, 789.

[^361]: *Id*. at 787-88. *See* 47 U.S.C. § 224(d), (e).

[^362]: *See Implementation of Section 703(e) of the Telecommunications
    Act of 1996, Amendment of the Commission's Rules and Policies
    Governing Pole Attachments*, CS Docket No. 97-151, Report and Order
    ("*Pole Attachment Order*"), 13 FCC Rcd 6777, 6794-96 ¶¶ 32, 34
    (1998).

[^363]: 47 U.S.C. §254(d).

[^364]: *See, e.g.,* Comcast Comments at 42-43; SBC/BellSouth Comments
    at 37, Reply Comments at 22-23; OPATSCO Comments at 2-4; Texas
    Office of Public Utility Counsel Comments at 21; USTA Comments at
    23-24; VoiceStream Reply at 1, 14-17; *see also* USTA Petition for
    Declaratory Ruling on Universal Service Contribution Obligations of
    Cable Operators that Provide Telecommunications Service (GN Docket
    No. 00-185, filed Sept. 26, 2000).

[^365]: If a cable operator were to be also classified as a
    telecommunications carrier because it provides a separate
    telecommunications service, universal service contribution
    obligations would be mandatory under section 254(d) of the
    Communications Act. 47 U.S.C. § 254(d). Section 254(d) also provides
    the Commission with the discretion, if the public interest so
    requires, to impose universal service contribution obligations on
    "any provider of interstate telecommunications" (as distinguished
    from telecommunications *service*). 47 U.S.C. § 254(d).

[^366]: *See Wireline Broadband NPRM*, FCC 02-42, ¶¶ 79-80.

[^367]: A "cable operator" is defined for purposes of section 631 to
    include "any person who (i) is owned or controlled by, or under
    common ownership or control with, a cable operator, and (ii)
    provides any wire or radio communications service" as well as
    persons within the definition in section 602. 47 U.S.C. §
    551(a)(2)(C) (citing 47 U.S.C. § 522(5)). The Commission has
    interpreted this section to encompass cable operators and their
    affiliates that provide any wire or radio communications service.
    *See FCC AOL Time Warner Merger Order*, 16 FCC Rcd at 6665 ¶ 279.

[^368]: 47 U.S.C. § 551. Subsection (a)(2)(B) defines "other service."

[^369]: *See Application of the United States of America for an Order
    Pursuant to 18 U.S.C. § 2703(D)* ("*Application of the United
    States*"), 157 F. Supp. 2d 286, 291 (S.D.N.Y. 2001).

[^370]: 47 U.S.C. § 551(a), (b), (c). The provisions in subsection (h),
    regarding the standard of proof for a court order and giving the
    subject an opportunity to appear and contest the claims made to
    support a court order, have been found to be inapplicable to "other
    service." *See Application of the United States,* 157 F. Supp. 2d at
    291 (citing 47 U.S.C. § 551(a)(2) (defining "other service" for
    purposes other than section (h)). An exception to the restriction on
    disclosure added by the USA Patriot Act permits an operator to
    disclose personally identifiable information to a government entity
    as authorized under certain provisions of title 18 of the United
    States Code, other than records regarding the subscriber's selection
    of video programming. *See* Uniting and Strengthening America by
    Providing Appropriate Tools Required to Intercept and Obstruct
    Terrorism Act of 2001 ("USA Patriot Act"), Pub. L. No. 107-56, Title
    II, § 211, 115 Stat. 283 (2001), 47 U.S.C. § 551(c)(2)(D).

[^371]: 47 U.S.C. § 551(g). *See* National League of Cities, et al
    Comments at 15 (arguing that the privacy provisions of § 631 can and
    should apply to cable modem service).

[^372]: *See* 47 U.S.C. § 551(f) (providing that any person aggrieved by
    the section may bring a civil action in a United States district
    court).

[^373]: As a condition for its approval of the AOL Time Warner merger,
    the Commission required AOL Time Warner to certify periodically that
    AOL Time Warner is and will remain in compliance with section 631.
    *FCC* *AOL Time Warner Merger Order*, 16 FCC Rcd at 6665 ¶ 279.

[^374]: *See* 5 U.S.C. § 603. The RFA, 5 U.S.C. § 601 *et. seq*., has
    been amended by the *Small Business Regulatory Enforcement Fairness
    Act of 1996* ("SBREFA"), Pub. L. No. 104-121, Title II, 110 Stat.
    847 (1996).

[^375]: *See* 5 U.S.C. § 603(a).

[^376]: *Id.*

[^377]: Cable modem service refers to the provision of high-speed
    Internet access service over cable system facilities. *See supra*
    para. 1.

[^378]: 5 U.S.C. § 603(b)(3).

[^379]: *Id.* § 601(6).

[^380]: *Id.* § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^381]: 15 U.S.C. § 632.

[^382]: 13 C.F.R. § 121.201, North American Industry Classification
    System ("NAICS") code 513220.

[^383]: *See U.S. Department of Commerce, Bureau of the Census, 1992
    Economic Census Industry and Enterprise Receipts Size Report,* Table
    2D (U.S. Bureau of the Census data under contract to the Office of
    Advocacy of the U.S. Small Business Administration). These data have
    been updated for 1997, but without the small business breakout.
    *See* Summary, 1997 Economic Census, Subject Series: Information, at
    24 (issued April 2001). By 1997, the census total for firms in this
    category had increased to 4,185. *Id.*

[^384]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determinations that a small cable company is one with
    annual revenues of \$100 million or less. *See Implementation of
    Sections of the Cable Television Consumer Protection and Competition
    Act of 1992: Rate Regulation*, MM Doc. Nos. 92-266 and 93-215, Sixth
    Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd
    7393, 7408-7409 ¶¶ 28-30 (1995).

[^385]: Paul Kagan Assocs., Inc., Cable TV Investor, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^386]: 47 U.S.C. § 543(m)(2).

[^387]: *See FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator,* Public Notice, 16 FCC Rcd 2225 (2001).

[^388]: 47 C.F.R. § 76.1403(b).

[^389]: *See FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator,* Public Notice, 16 FCC Rcd 2225 (2001).

[^390]: We do receive such information on a case-by-case basis only if a
    cable operator appeals a local franchise authority's finding that
    the operator does not qualify as a small cable operator pursuant to
    section 76.901(f) of the Commission's rules. See 47 C.F.R. §
    76.990(b).

[^391]: *See* 47 U.S.C. § 573.

[^392]: 13 C.F.R. § 121.201, NAICS Codes 51321 and 51322.

[^393]: *Id.*

[^394]: *See* Federal Communications Commission*, Filings for
    Certification of Open Video Systems*, at
    http://www.fcc.gov/csb/ovs/csovscer.html (visited Jan. 8, 2002).

[^395]: 47 U.S.C. § 153(20).

[^396]: *See* ACA Comments at 15-18.

[^397]: 47 C.F.R. §§ 1.415 and 1.419.

[^398]: See Electronic Filing of Documents in Rulemaking Proceedings, 63
    Fed. Reg. 24121 (1998).

[^399]: *See* *FCC Announces a New Filing Location for Paper Documents
    and a New Fax Number for General Correspondence*, Public Notice, DA
    01-2919 (rel. Dec. 14, 2001).

[^400]: 47 C.F.R. § 1.1206(b).

[^401]: *See id.* § 1.1206(b)(2).

[^402]: *See* Communications Act § 621 (c), 47 U.S.C. § 541 (c)

[^403]: *MediaOne Group, Inc. v. County of Henrico,* 257 F. 3d 356
    (4^th^ Cir. 2001).

[^404]: *United States v. Southwestern Cable Co.,* 392 U.S. 157 (1968).

[^405]: *Appropriate Framework for Broadband Access to the Internet Over
    Wireline Facilities; Universal Service Obligations of Broadband
    Providers*, CC Docket No. 02-33, Notice of Proposed Rulemaking ¶¶
    5-6 (rel. Feb. 15, 2002) ("*Wireline Broadband NPRM*").

[^406]: I encourage commenters to provide detailed arguments on our
    statutory authority to impose a cable access requirement, including
    in particular the provisions of the Act that might support our
    exercise of ancillary authority under section 4(i). I note that,
    while the Commission relied on that provision in adopting the
    *Computer Inquiry* requirements, there may be a greater nexus
    between those requirements and the provisions of Title II than
    exists between a cable access requirement and other affirmative
    grants of authority.

[^407]: Telecommunications Act of 1996, § 706, 47 U.S.C. § 157 note.

[^408]: *See* 47 U.S.C. § 153(10). In light of this broad definition of
    common carrier, Congress expressly exempted cable services regulated
    under Title VI from regulation as a common carrier. 47 U.S.C. §
    541(c).