Consumer groups are not giving up the fight to force open access on incumbent carriers, despite today's U.S. Supreme Court vote upholding the Federal Communications Commission ruling that allows cable companies to restrict access to their networks.

Mark Cooper, director of research at the Consumer Federation of America, said today that consumer groups will continue to put pressure on the FCC to "write a sensible policy" that maintains access to telephone company broadband networks "and then pull the cable operators back in under some reasonable guidelines."

Cooper maintained this is "an idea opportunity for [FCC Chairman] Kevin Martin to show some leadership."

Because the Supreme Court ruling simply deferred to the FCC's judgment on the issue, there is no new law enforcing the cable companies' right to refuse to allow competing Internet service providers to use their networks.

Telephone company executives are already lining up to pressure the FCC to extend the "information service" designation that it gives to cable TV to them as well.

"We believe this decision paves the way for the FCC to lift quickly discriminatory regulation on broadband service offered by telephone companies so that consumers can benefit from competitors free to compete on service quality and price," said Herschel Abbott, BellSouth vice president of governmental affairs. "It is clear that broadband services whether offered by cable or telecom companies are functionally equivalent and thus should be regulated in the same way. Customers stand to benefit when unnecessary regulation is removed and companies can make business decisions based on consumer demand, not regulatory requirements."

Walter McCormick, president and CEO of the U.S. Telecom Association, said the court ruling clarified the FCC's role.

"While this was the correct decision for the cable industry, it further highlights why all providers must be given the same incentive to invest and deploy new technologies," he said in a prepared statement.

The pro-incumbent forces, including the Bush Administration, believe regulatory rules that force companies to share their broadband connections with competitors serve to impede investment. Pro-consumer forces claim that failing to require open access eliminates competition and reduces consumer choices.

The Brand X ruling comes as Congress is pondering telecom reform legislation that would overhaul current laws which try to distinguish between what is traditional telephone service and what is newer information service, even as all services migrate to IP, rendering such distinctions technically impossible.

Regulators at both the federal and state level have called for greater clarity in the laws they must follow in setting up rules for incumbents and competitors.

Cooper said consumer advocates are willing to take their case to Congress. "This was a huge mistake," he said of the ruling.