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.
- What's in a Name? Plenty! MAP analysis of the "clarification" in S. 150, the Internet Tax Freedom Act bill pending in the Senate. MAP concludes itwill cost the states between $4.5 billion and $8.5 billion anually and willadd confusion to the already confusing fight over broadband. (09/26/03)
- Map files comments in Video Competition Proceeding. Demands FCC protect independent programmers, set cable horizontal ownership limits. (09/26/03)
Other Resources on Open Access
News Articles:
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