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Court Gets Right Result on Cable Case:

The decision in National Cable Telecommunications Assoc. v. Brand X Internet Services, was a victory for technological progress, and for property rights. For nearly a decade, some Internet predators (including, for a while, AOL) claimed that the government should give them the right to sell ISP services delivered on a broadband network which was built by someone else. In other words, if A builds a restaurant, then B claims that he has the right to sell food in A's restaurant, as long as B pays A a "reasonable" fee for access to the restaurant. In a broadband context, the government-abetted piracy was called "Open Access", and claimed as giving consumers more choice. But the more accurate term was Forced Access, since B would use government force in order to intrude B's business onto A's property. In the long run, Forced Access would have drastically reduced consumer choice, since Internet companies would be reluctant to innovate and take risks to build infrastructure, if the government might force an innovative company to share the infrastructure with another company that did not innovate technologically, but did exercise political clout.

The Court's decision today did not address the merits of Forced Access, but instead deferred to the judgement of the Federal Communications Commission in interpretting an ambiguous statute. (Whether broadband is an "information service" or a "telecommunications service.") The F.C.C. did act on a policy basis. Back in 1999, I wrote a lengthy Policy Study for the Heartland Institute warning that a policy of Forced Access could harm the rapid development of broadband connectivity. Fortunately, the covetous companies that demanded Forced Access enjoyed only mild success in their preferred forum (city councils) and their schemes were defeated when the Federal Communications Commission intervened.

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