NATIONAL CABLE & TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES (04-277) 545 U.S. 967 (2005) 345 F.3d 1120, reversed and remanded.
Small Internet service providers in the era of dial-up service had equal access to home users because the first services were provided over Plain old telephone services (POTS) which were regulated as common carriers. Cable television operators then started to use the coaxial cables to provide high speed access. Small ISPs like Brand X wanted to use the coaxial cables, owned by private cable companies but using public rights of way, in a manner like common carriers. The FCC refused, and Brand X subsequently sued. The FCC won in the three judge panel in the Ninth Circuit but then lost en banc.
http://www.law.cornell.edu/supct/html/04-277.ZS.html
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