One of the longest-standing "gunfights" in the communications business is the battle between facility owners and those who would like rights to use those facilities to create and brand their own broadband services. The issue has been raised again as part of Comcast's bid to buy NBC Universal (News - Alert). 

The Federal Communications Commission and Department of Justice also seem to be asking about Comcast's distribution agreements with other video providers.

Companies such as EarthLink have such rights on telco digital subscriber line networks, but not on new fiber-to-customer networks. But no company ever has had the same access rights on cable infrastructure in the United States. 

EarthLink wants, as a condition of transaction approval, for Comcast (News - Alert) to provide nondiscriminatory wholesale broadband to a minimum of four independent ISPs across its national footprint at fair rates. EarthLink's gambit is a bit of a "Hail Mary pass." Though the rules about wholesale access obligations can be changed, they cannot be changed easily. Both regulators and the US Congress would have to act to change the wholesale access regime, and that seems unlikely at the moment.