A Copyfighter’s Musings

I finally read most of Harvard JOLT’s fall issue, including Yochai Benkler’s article on wireless (which I’ll get back to once I’ve read some counterarguments). 

There’s also this very interesting article called, “Cable Modem Service and the First Amendment: Adventures in a ‘Doctrinal Wasteland.'”  It’s a fascinating read. First, he goes through the basic history of cable modem regulation, including AOL’s position switch. He then compares two divergent lower court opinions, shows how they match up with what the FCC’s said, and discusses which ruling is probably correct.  Sometimes I wasn’t quite sure whether he was making normative or deductive claims.  I’ll try to review it later, see what I was missing.

One point that caught my eye:

“Some proponents of mandated access claim that cable modem service consists of two discrete elements: a “pipeline” and the services transmitted through that “pipeline.” The FCC, however, concluded that cable modem service is an “integrated service” combining “the transmission of data with computer processing, information provision, and computer interactivity, enabling end users to run a variety of ap-plications.” This meant that the FCC would not target the transmis-sion function as a “telecommunications service” subject to Title II regulation, while leaving the other elements unregulated. As will be shown next, viewing cable modem service as an integrated combina-tion of content and “pipeline” strongly supports the First Amendment rights of cable operators.”

This is later related to one court opinion, which the author says is correct given what the FCC’s said.

Intuitively, this strikes me as plain wrong.  Apparently, the “content” (as described in the article) seems to be merely the start page ISPs provide to their customers. Perhaps it’s more, but, even if it is, it still seems like you can separate the content from the pipeline.

This points to another problem in our classification system. It’s one John Palfrey has mentioned many times: how we define an ISP or a “telecommunications” service provider?  We don’t know, because they seem to be defined many different ways. 

I haven’t read near enough about the growing control in the “physical” (and, hence, the “logical” and “content”) layers.  I’ve understood the basic outline for awhile, but I haven’t investigated too deeply.  I should probably go back and look at the recent changes in DSL rules (is it still right to think that DSL is less problematic than cable in turns of content control?).

Filed by Derek Slater at 12:47 pm under General news
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