Heartland Senior Fellow Steven Titch Reacts to U.S. Supreme Court Decision in Brand X

Published June 27, 2005

The resolution of the Brand X case, National Cable & Telecommunications Assn. v. Brand X Internet Services, brings much-needed regulatory clarity to the use of privately owned broadband infrastructure.

Simply put, the Supreme Court ruled that companies that finance their own network construction cannot be compelled to share network infrastructure with firms that would rather avoid the associated investment risk.

The 6-3 ruling transcends partisan politics and validates the policy set forth by Clinton-era FCC Chairman William Kennard, since reinforced by current Chairman Kevin Martin.

The uncertainty over network-sharing rules has been among the key reasons broadband deployment has not proceeded in the U.S. as fast as it should. The Court’s decision in Brand X clarifies that any so-called “broadband company” cannot arbitrarily claim a piece of a broadband network funded not by the government, but by corporate shareholders and private lenders.

Steven Titch ([email protected]) is senior fellow – technology and telecom policy for The Heartland Institute, a national nonprofit organization based in Chicago. Among other publications, Heartland publishes Info Tech & Telecom News, a monthly newsletter sent to state legislators and public utility commissioners providing commentary on telecommunications and information technology policy issues.