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28 Suffolk U. L. Rev. 715 (1994)
Telephone Company Entry into the Cable Television Market: The Clash between the First Amendment and the Laws and Procedures of Antitrust Enforcement

handle is hein.journals/sufflr28 and id is 735 raw text is: NOTES TELEPHONE COMPANY ENTRY INTO THE CABLE TELEVISION MARKET: THE CLASH BETWEEN THE FIRST AMENDMENT AND THE LAWS AND PROCEDURES OF ANTITRUST ENFORCEMENT I. INTRODUCTION Over the past ten years there has been a significant deterioration of the legal barriers formerly preventing telephone company entry into the cable television services market.' Initially, telephone companies, particularly the Bell Operating Companies (BOCs), could not legally provide information services as a result of a 1982 settlement decree that divested AT&T of the BOCs.2 At the same time, section 533(b) of the 1984 Cable Act pro- hibited the telephone companies from providing cable television services in areas where they provided telephone services.3 In 1991, the court su- pervising the 1982 AT&T settlement decree removed the ban on the BOCs' provision of information services. More recently, the Federal 1. Until recently, there were four major legal and regulatory barriers to telephone company entry into the cable television market. See Daniel L. Brenner, Telephone Company Entry Into Video Servic- es: A First Amendment Analysis, 67 NOTRE DAME L. REV. 97, 103 (1991) (listing legal and regulatory barriers of telephone company delivery of video). This note will focus on the two former major federal barriers. These are § 533(b) of the 1984 Cable Act, 47 U.S.C. § 533(b) (1988), and the 1982 AT&T settlement decree, 552 F. Supp. 131 (1982), which prohibited the divested Bell Operating Companies from entering the information services market. 2. See United States v. American Tel. and Tel. Co., 552 F. Supp. 131, 227 (1982) (stating no BOC shall provide information services). The decree did not specifically mention cable television services in its definition of information services, but it can be assumed that provision of cable television falls within this category. See Telephone Competition in Cable Television As Forbidden Information Service, TELECOMMUNICATIONS REP., Sept. 4, 1989, at 8 (comments of James F. Rill, Assistant Attorney General-Antitrust) (classifying cable television as information service for decree purposes); see also infra note 67 and accompanying text (describing consent decree's definition of in- formation services). 3. Section 533(b) of the 1984 Cable Act provides, in pertinent part: (1) It shall be unlawful for any common carrier, subject in whole or in part to title II of this Act, to provide video programming directly to subscribers in its telephone service area, either directly or indirectly through an affiliate owned by, operated by, controlled by, or under common control with the common carrier. (2) It shall be unlawful for any common carrier, subject in whole or in part to title II of this Act, to provide channels of communications or pole line conduit space, or other rental arrangements, to any entity which is directly or indirectly owned by, operated by, controlled by, or under common control with such common carrier, if such facilities or arrangements are to be used for, or in connection with, the provision of video programming directly to subscribers in the telephone service area of the common carrier. 47 U.S.C. § 533(b)(1988). 4. United States v. Western Elec., 767 F. Supp. 308, 332 (D.D.C. 1991).

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