(We have attempted to provide an overview of the issues which arise in the Open Access debate to help you with this week's required readings.  In addition to this, we have also included some links to optional articles and sites which may be of interest.  The required readings are marked as such in the text below.  Please click on the relevant link to see the full article) 
 

At present, the vast majority of Americans with online access--approximately one-third of all households--gain access to the Internet via standard dial-up connections through one of more than 6,000 Internet Service Providers (ISPs).  Fewer than one million Americans gain access to the Internet via cable connections. To put this number in perspective, America Online (AOL), merely one of the more than 6,000 standard dial-up ISPs (albeit the largest of them), by itself provides Internet access for approximately 20 million Americans. 

Currently only a small percentage of the market for online access then, although as recent market statistics and projections (optional) indicate one which is growing exponentially, the question necessarily arises as to why innumerable articles have either implicitly or explicitly suggested  that nothing less than the future of the Net is at stake with regard to the issue of "open access" via cable connections?  See for instance "It's the Architecture, Mr. Chairman" by Lawrence Lessig (optional).  In order to answer this question, it is important to first understand what is meant by the term "open access".

Today access to the Internet is primarily obtained over traditional copper phone lines via dial-up modem service.  In the market for dial-up Internet service, users can choose from a nearly limitless range of ISPs despite the  lack of similar choice in local phone companies.  This expansive and competitive market for ISPs continues to thrive largely because federal regulation has deemed the phone lines through which modems connect to the Internet to be "common carriers."  As a result, the owners of copper phone lines are required to sell access to their networks to all companies who wish to utilize that network of phone lines--including all ISPs--on a non-discriminatory basis.  The result of this system of federal regulation and the resulting competitive marketplace is  "open access" to the Internet.

As Internet traffic and content continues to expand at an exponential rate, users are beginning to demand high-speed Internet access that supports expanded video, voice, and data offerings.  Unfortunately, traditional copper phone wires offer extremely limited bandwidth capabilities.  As a result, users who want access to cutting edge Internet technology must connect to the Internet through a cable modem, digital subscriber line (DSL), or through a high-speed satellite or microwave provider.  These technologies, described in more detail in an "Overview of Cable Modem Technology and Services" (optional), offer an ability to connect to the Net at rates over 50 times faster than traditional dial-up modem connections. Consequently, the competitive landscape in the ISP market is likely to experience a dramatic technological transformation in the next decade.

Unlike traditional phone lines, however, cable providers currently are not subject to federal regulation mandating that ISPs be allowed to interconnect to their networks on a non-discriminatory basis. Historically, as we are reminded in the article "Cable Blackmail"  by Lawrence Lessig (optional), cable licenses have been owned as local franchise monopolies.  As a result, the only regulation of "access" in the cable marketplace is a decentralized patchwork of widely varying local regimes.  Generally, the cable provider that owns the cable lines has total control over access to the network.  In any given community, there is typically only one set of cable lines.  Consequently, in all but a few communities, the vast majority of Americans have no meaningful choice in the market for cable television.  Consumers must either purchase cable through that one cable provider or watch limited broadcast television through antenna "rabbit ears."  Cable television, as such, is a monopoly in its purest, rawest form, the antithesis of "open access." 

Now, however, this cable television monopoly threatens to expand into monopoly control over high-speed Internet access.  Following the recent wave of merger activity in the cable industry, AT&T and AOL effectively own 100% of the cable systems in the United States.  If cable broadband Internet access represents both the present and future of Internet access for the foreseeable future, then monopoly or oligopoly control over America's cable systems could imply, as noted by Dan Kennedy in the recently published article "Net loss"(required reading), a lack of choice in the market for ISPs.  For instance, AT&T could force Media-One and TCI customers who want high speed Internet access to utilize AT&T's own ISP, Excite@Home.  As a result, monopoly ownership of America's cable networks could also imply the ability to control content in Internet space as well.  As shown in Jerome Saltzer's article "Open Access is Just the Tip of the Iceberg" (required reading), new router technology may even offer the potential for cable network owners to route their ISP traffic at faster rates of download than those of competing ISPs. Thus, the absence of federal regulation in the cable market mandating "open access" to all ISPs on a non-discriminatory basis in the threatens the "End to End" architecture principle of the Internet, as described in the article "End-To-End Arguments in System Design", (optional) that has arguably made the Internet a true marketplace of ideas.

Conversely, however, a high-speed broadband cable network does not exist until it is created.  To that end, AT&T alone plans to spend billions of dollars to develop the infrastructure necessary to support broadband Internet technology. As a consequence, "open access" arguably represents a severe economic threat to AT&T and AOL.  AT&T for instance has often threatened to simply stop deployment of this high-speed broadband network if it is not allowed to recoup its investment through monopoly control over Internet access through its own cable lines.  Prominent antitrust professors, such as Mark A. Lemley and Lawrence Lessig in their written ex-parte regarding the application for consent to the transfer of control of licenses MediaOne Group, Inc. to AT&T Corp. before the Federal Communications Commission dated(required reading),  however, have noted that AT&T can recoup its investment by charging other ISPs for access to its network without regulating the content that flows over its cable lines. As a result, the development of a high speed broadband network does not necessarily imply that the United States must abandon the "End to End" Internet architecture principles that have served society so well to date. 

Additionally, many critics of broadband "open access" have argued that competing technologies such as DSL minimize the need to regulate access to the cable Internet backbone.  Consequently, any thorough analysis of the "open access" debate requires an understanding of the strengths and limitations of the various technologies competing to offer high speed access (optional).

While "open access" superficially might appear to be simply a financial debate, the real fundamental issue at stake is access to truly independent media outlets. Many of these independent media outlets, that have historically been shut out of the mainstream broadcast television markets, have utilized the Internet as a platform to disseminate their unfiltered messages to the masses.  For these actors, the stakes of "open access" are primarily philosophical.  "Open Access" and the "End to End' architecture that support such access involve the very character of the Internet itself. If monopoly control over cable lines enables AT&T and AOL to leverage their control over infrastructure into control over content, then, as argued by the Consumer Federation of America (optional)by the character of the Internet as an engine of technological and marketplace innovation, open entry, economic growth, and free expression is arguably threatened. Thus, what on the surface appears to be a financial debate at its core implicates more fundamental notions of free speech, censorship, and equal protection.

Thus, the FCC's laissez-faire decision not to mandate "open access" to the cable Internet backbone might have the ironic effect of actually diminishing the vitality and breadth of content and choice in this crucial marketplace of ideas.  By doing nothing, the FCC has placed the burden of fighting for open access squarely upon the shoulders of local communities who regulate the licensing of local cable franchises.  Consequently, a network of activist legal scholars and ISP coalitions (optional) have joined forces to campaign for open access at the local level in communities nationwide from Cambridge, Massachusetts to Portland, Oregon (for another perspective visit www.handsofftheinternet.org (optional)). These local campaigns have produced a patchwork of local regulations in which cable companies must provide "open access" to competing ISPs in some communities but not others.  Arguably, the Internet infrastructure, an issue that is vital to America's economic and social well-being, deserves a more comprehensive and well-orchestrated set of guiding principles in order to ensure its future vitality in a rapidly evolving marketplace.  Thus, with an issue of such critical importance to our Nation's future still unresolved you have a tremendous opportunity to become informed and involved in defining the very character of the Internet in the next millennium.

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