Issues
Broadband/Open Access to the Internet over Cable
Infrastructure
Overview
"Open access", the ability of any citizen to chose their Internet
service provider (ISP), access any content or service, and transmit
any information desired, is the hallmark of the existing Internet.
The medium has thus become, in the words of the Supreme Court "as
diverse as human thought." Low barriers to entry and broad
accessibility have allowed anyone who wishes to make information
available throughout the world, or organize communities across vast
distances.
But nothing dictates it will remain this way. The Internet
evolved as an open medium because, early in its evolution, the
Federal Communications Commission (FCC) issued regulations
requiring that telephone companies open their networks
to these competing services and that they carry the traffic of
rivals without interference.
For years, the FCC has refused to require cable companies to open
their networks in the same way that they required the telephone
companies to open their networks to the dial-up Internet. As a
result, millions of Americans who can receive broadband Internet
only via cable must accept the monopoly terms of their cable
company.
In many cities (although, for technical reasons, not in rural and
not in some suburban areas) telephone companies offer a competing
form of broadband called "DSL." The FCC rules that guaranteed open
access in dial-up also required open access for DSL. Although
technically inferior and more complicated to use than cable
broadband, DSL at least offered some subscribers to use the ISP of
their choice and unimpeded access to all Internet content or
services.
The FCC has now announced it will end the rules that require
telephone companies to open their DSL lines to other ISPs. From now
on, DSL subscribers will not have a choice of provider. The FCC
describes this as "regulatory parity" that will "spur broadband
investment" by the phone companies.
Instead, it will kill the free expression that makes the Internet
so vital a part of modern life. The technology allows cable and
phone companies to subtly interfere with users trying to access
rival content, while making it easy to access the cable or phone
companies’ own content. Cable companies have also negotiated deals
with the largest ISPs to transition narrowband subscribers to
broadband services under cable terms. Already major ISPs speak of
changing their broadband service to a "premium cable" type service.
Users would roam through "walled gardens" of cable content with
diminished opportunities to create their own content or seek content
from others.
When MAP began to fight for open access in 1998, few heeded the
warnings that the Internet could lose its free and open nature. Now,
with over 20% of Americans receiving the Internet via broadband
connections, changes have already begun to occur. As more people
transition from the open dial-up Internet to the walled garden of
cable broadband, the “taming” of the Internet will continue. By the
time major changes in the character of the Internet are noticeable,
it will be too late. The time to act to protect the Internet is now.
- FCC Advocacy — MAP has pushed hard for the FCC to
create an open access regime for broadband. MAP has participated
in numerous FCC proceedings, and met repeatedly with FCC officials
from the staff level to the Chairman of the FCC to press the open
access case.
- Judicial Advocacy — MAP has filed briefs before Federal
courts across the country, including the Supreme Court, in cases
involving open access.
- Merger Review — Several mergers of large cable
companies have threatened to further consolidate the emerging
broadband industry and combine control of the most desirable
content with control of the conduit. MAP successfully advocated
for open access provisions in the AOL/Time Warner merger before
the Federal Trade Commission and the FCC.
- Community Outreach — MAP has worked hard to alert the
broader public interest community to the need for open access and
explain the complex legal issues involved.
- Broader Outreach/Education — MAP plays an important
role in advocating for open access in the court of public opinion.
Mainstream and trade press reporters regularly turn to MAP for
explanations of court or FCC decisions, and MAP devotes
considerable resources to educating reporters, writing articles
(from scholarly articles in law journals to opinion pieces for
popular newspapers), attending conferences, and appearing on
panels.
- Interactive Television (ITV) — ITV is the marriage of
broadband Internet and cable television. It represents tremendous
possibilities for community access. At the same time, it also
reinforces the "walled garden" design by cable operators to keep
subscribers confined to their proprietary systems. MAP has
participated in the FCC ongoing inquiry into ITV and continues to
monitor the situation.
- Wireless Internet — As wireless technologies gain
broader deployment, MAP is expanding its open access campaign to
include wireless Internet access, which is currently adopting
proprietary protocols and a closed architecture.
What Is Broadband?
"Broadband" refers to high-speed Internet access. Traditionally,
residential subscribers have accessed the Internet by attaching a
modem to their phone line and placing a local call to their ISP.
This "dial-up" or "narrow band" service has a number of constraints
on speed. Most commercial modems can achieve a maximum speed over
the phone line of 56 kilobits per second (kbps), and usually perform
much worse.
While this works all right for text or email, it is too slow for
many popular web "applications." Graphic-rich webpages seem to take
forever to load, and video and audio stream is jerky and unreliable.
This limits the ability of people to use the Internet as a medium of
communication and commerce, trapping them in a "world-wide-wait"
while pages endless download.
As a result, many different companies have worked to develop
"broadband" or high-speed access. These broadband services will
allow Internet subscribers to send or receive video and audio
content of digital quality, to download interactive graphic-rich
webpages, and to allow Internet entrepreneurs to bring new services
to market that take advantage of speeds that will make the Internet
truly interactive in real time. In short, broadband promises to
revolutionize the Internet in the same way that the introduction of
the Internet revolutionized communication.
In deploying these broadband services, companies are developing
whole new ways to access the Internet. Some of these, such as
digital subscriber lines (DSL) use the phone network. Some use
wireless devices or satellite services, and there is even talk of
deployment through power lines.
Cable, however, has all of these beat. Because of the widespread
deployment of cable systems (cable passes 97% of residential homes),
cable system operators have taken a significant lead in bringing
broadband services to residential customers. In addition, cable has
certain technological advantages which give it an advantage in
deployment over DSL or other competing broadband delivery systems.
For the foreseeable future, when looking at deployment of broadband
to the home, we are talking about cable broadband.
What is Open Access?
"Open Access" means that the owner of a network must make it
available to all users under the same terms and conditions. The
network owner cannot interfere with content that travels over the
network. By contrast, in a closed network, the network owner can
prevent anyone it wants to from using the network, can determine
what traffic it will or won't carry, and can set priorities based on
where the traffic comes from or to whom its going (or for any other
reason).
The telephone network is an "open access" or "open"
network. As a result of this openness the Internet grew and
flourished. Any internet service provider (ISP) that wants to offer
service can do so, despite the fact that the phone companies that
own the lines offer competing services.
The FCC itself has acknowledged the importance of the an open
network in the development and growth of the Internet. As Jason
Oxman wrote in Office of Plans and Policy Paper #31, "The FCC and the
Unregulation of the Internet:"
The Internet has grown up over this country's telephone
lines, a technological development that has made it possible for
virtually any American to join the online community. Because of
the vast expanse of telephone penetration in this nation, and
because of the openness of that network, the Internet has
exploded. Every American with a phone line and a computer can be
part of the Internet. The phone network has historically been open
in two senses: phone customers are permitted to access any
Internet service provider of their choosing, and those customers
are permitted to attach their own equipment to the phone line,
allowing them to use modems to transform their phone lines into
their own information superhighways.
Open access across the telecommunications network has driven
the deployment of innovative and inexpensive Internet access
services.
OPP #31 at p.5
Nor was the FCC's Mr. Oxley alone in his observations of how the
open access of the telephone network has fueled the astounding
growth of the Internet. Many others have observed how the current
open access architecture of the Internet has been critical to its
development and widespread deployment.
Map Filings
The following are available for download in Adobe
format:
- Petitioners file Notice
of Appeal of FCC's Order consenting to transfer of licenses in
AT&T/Comcast proceeding. Petitioners ask the Court to consolidate
proceeding with the AT&T/Comcast proceeding and to expedite
review of the FCC's Order. (11/12/02)
- Petitioners file Emergency
Motion to Suspend AT&T/Comcast Proceeding at the FCC and
Petition
for Review asking the Court for expedited review of this
proceeding.(11/07/02)
- Petitioners submit memorandum
in response to questions propounded by Office of General
Counsel on merger of AT&T Broadband and Comcast.
(10/28/02)
- MAP brief
on behalf of Public Interest Petitioners challenging FCC
decision to reject open access for cable Internet access.
(10/10/02)
- Petitioners Reply
to Comcast's and AT&T's Opposition to provide additional
information. (09/23/02)
- Letter
from consumer groups to High-Tech Broadband Coalition (HTBC)
concerning non-discriminatory access. (09/03/02)
- Cable Modem Open Access Comments
filed by MAP and others. (6/17/02)
- Comments
defending openness and competition on the Internet in the FCC's
Wireline Broadband proceeding.(05/03/2002)
- Reply
Comments in FCC's ILEC Non-Dom
proceeding.(4/25/02)
- MAP statement
when it filed suit challenging FCC Internet Cable Ruling.
(3/25/2002)
- MAP filed
before the Supreme Court in NCTA, et al., and FCC v. Gulf
Power, et al. explaining that cable broadband Internet access
should not be classified as a cable service and that classifying
it as a cable service would harm free speech on the Internet.
(Please note that the pagination of the PDF version does not
exactly match that of the actual document.) (4/6/01)
- On January 16, 2001, the Supreme Court issued its decision. Read
MAP's statement expressing disappointment in the reasoning
behind the verdict, but expressing pleasure with the final result.
- CU, et
al. Comments in FCC's Inquiry Concerning High Speed Access to
The Internet Over Cable and Other Facilities (12/1/00)
- Read a letter
from MAP to FCC Chairman Kennard regarding Open access and Instant
Messaging. (9/26/00)
- Media Access Project filed a brief on
behalf of Amici Curiae Virginia Citizens Consumer Council,
Consumer Federation of America, and Center for Media Education in
the United States Court of Appeals for the Fourth Circuit. MAP
argued in support of open access to promote free speech on the
Internet. (6/10/00)
- Letter
of MAP President & CEO Andrew Jay Schwartzman to FCC
Chairman William Kennard on why the AT&T-Mindspring Letter is
not "Open Access." (12/9/99)
- Amicus Brief
filed by MAP and TURN on behalf of consumer groups in AT&T
v. Portland, in which MAP defends Portland's right to require open
access as a condition of transferring the local cable franchise
from TCI to AT&T. (9/14/99)
- MAP has also filed in several related proceedings, such as the
proceeding on the FCC's cable
ownership limits and cable attribution rules.
MAP and its colleague organizations opposed the
AOL/Time Warner merger based on open access concerns.
(4/26/00)See also:
- Joint letter from MAP, Consumers Union, Consumer Federation of
America, and Center for Media Education to FCC Chairman Bill
Kennard about open access
implications for the AOL/Time Warner merger.
(9/26/00)
- MAP, CU, CFA and CME wrote to
the FTC when AOL Time Warner have refused to carry
advertisements for phone companies trying to promote their DSL
Internet services on Time Warner's cable systems.
(6/8/01)
MAP and its colleague organizations opposed AT&T's merger
with TCI and MediaOne vigorously, open access was a significant
policy issue.Below are some selected filings:
Policy Papers
A number of organizations and individuals have written policy
papers relevant to issues MAP covers. We don't necessarily agree
with everything in these papers, but they provide useful background
and information.
- Mark Cooper of Consumer
Federation of America has written a number of important policy
papers on open access and the proposed AT&T/MediaOne merger.
You can find these papers by clicking here.
- Professor
Lawrence Lessig of Harvard University has written Code and Other Laws of
Cyberspace, which discusses in part the importance of
imbedding openness in the network's architecture. Professor Lessig
has also filed comments with the FCC on the importance of open
access. You can read those comments by clicking here.
- The Federal Communications
Commission has written its own policy paper on broadband and
broadband deployment called "The FCC and the Unregulation of the
Internet." MAP strongly disagrees with the conclusion the FCC
draws, i.e. that the FCC should take no action to require open
access. A copy of this FCC policy paper, and other policy papers
relevant to the Internet, can be found here.
- In addition, the Cable Services Bureau has written a report on
the status of the broadband market, called Broadband
Today. MAP and other consumer groups wrote a letter to
Chairman Kennard criticizing the report and the process behind it.
You can find this letter here.
Other Resources on Open Access
News Articles:
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