Open Access Protest at the FCC -- July 27, 2000

The Broadband Future: Open Access or Closed Networks?
written by the Center for Media Education.

I. The Need for Open Access

A. The central issue is whether we can preserve the openness and diversity that have long characterized the dial-up, narrowband Internet, where innovation and competition have flourished, in the new broadband environment.

B. Now that the Ninth Circuit Court has ruled that high-speed Internet access over a cable plant is a telecommunications rather than a cable service, the stage is set for the FCC to achieve regulatory parity between DSL service over telephone lines (which are open to competitive ISPs) and broadband cable networks (which are currently closed to such competition).

C. The FCC should abandon its misguided "hands-off" approach to broadband cable and adopt an open-access requirement that includes the following four guarantees:

1. Access to information without the need to see a network operator's proprietary content (the so-called "single click" requirement), allowing the user to navigate the Internet without necessarily passing through the network owner's portal.
2. Access to all content and services, allowing the user to filter content or to use or not use any Internet-related applications if he or she chooses, but not imposing any filtering or blocking schemes from above.
3. Equal treatment of all Internet traffic, without subjecting any material to unnecessary delays.
4. Access for people with disabilities, by adhering, for example, to the guidelines established by the World Wide Web Consortium's Web Accessibility Initiative (www.w3.org/WAI).

D. Open access, contrary to cable industry claims, does not imply a "free ride" on cable networks, but rather guarantees broadband network interconnections to independent ISPs on the same prices, terms, and conditions that the network owner extends to its affiliated ISP.

II. The Danger of Closed Broadband Architecture

A. Under existing regulations, all but a handful of the nation's 6000+ ISPs will be excluded from what is likely to become the dominant broadband platform-cable networks.

B. Companies that control both content and the conduit through which that content flows (e.g., AOL Time Warner, if its merger is approved without conditions) will have both the power and the incentive to favor their own programming at the expense of others:

1. Using packet identification and other schemes to segment data flows into differentiated levels of service, granting faster transport to affiliated content.
2. Discriminating in screen placement, menus, and other navigational aids to favor affiliated programming.
3. Deploying set-top boxes that are programmed to facilitate delivery of certain brands of content.

C. The FCC should condition its approval of the proposed AOL-Time Warner merger on the maintenance of an "arm's-length" separation of the new entity's data delivery and content production functions (as well as its adherence to the open-access principles outlined above).

D. In the words of New York Times columnist Frank Rich (in response to Time Warner's blocking of Disney-owned ABC stations in a recent showdown between the two media giants): "What Time Warner did to Disney … is just a tiny window into how these corporations can behave in their even more powerful future, when cable TV service will be inseparable from Internet service. There is nothing to stop one of these new megaliths from exerting a larger and more surreptitious chokehold on all the electronic services that their cable wires will speed by the bundle into our homes tomorrow, from chat rooms to e-shopping to movies."

In sum:

The possibilities for democratic discourse, for educational advancement, and for cultural expression will be greatly reduced in a delivery system that favors big business over small, e-commerce over e-democracy, and public relations over public service. Free of such market-based controls, on the other hand, the new broadband networks could bring a vast array of new programming to the home, at once extending the reach of the Internet (which currently serves less than half of the nation's households) and enhancing its content (much of which is currently constrained by the bandwidth limitations of dial-up modems).

The Internet has long been characterized by the free flow of information, supported by the basic principles of openness (of access), equality (of data), diversity (of content), and freedom (of expression). Network growth and market forces alike will inevitably yield various embellishments on basic data delivery. Some of these variations will arise in response to traffic congestion and the need to distinguish among different data types; others will result from efforts to exploit the demand for premium service, including expedited transport using proprietary networks. But neither the evolution of networking technologies, nor the introduction of value-added services, should be permitted to undermine the fundamental openness of the Internet, either by creating artificial bottlenecks or otherwise constraining unnecessarily the free flow of network traffic. For these reasons, the FCC and FTC should establish regulatory policies that will maintain the basic open, democratic, nondiscriminatory character of the Internet.