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Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

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In the Matter of:

CS Docket No. 99-251

Application for Consent to the
Transfer of Control of Licenses
MediaOne Group, Inc. to AT&T Corp.

WRITTEN EX PARTE OF PROFESSOR MARK A. LEMLEY AND PROFESSOR
LAWRENCE LESSIG

INTRODUCTION

1.

We offer this written ex parte to address the question of “open access” and its

relationship to the architecture of the Internet. It is our view that the extraordinary growth and

innovation of the Internet depends crucially upon this architecture. Changes in this architecture

should be viewed with skepticism, as they may in turn threaten this innovation and growth.

2.

The proposed design of the merged AT&T and MediaOne entity, once allied with

the existing merged AT&T and TCI, threatens to compromise an important architectural

principle of the Internet. As we describe in more detail below, it threatens to weaken the

Internet’s “End-to-End” design. In our view, this change could have profound implications for

the future of growth and innovation on the net.

3.

The FCC’s analysis to date does not consider these principles of the Internet’s

design. It therefore does not adequately evaluate the potential threat that this merger presents.

Neither does the FCC’s approach properly account for its role in creating the conditions that

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made the Internet possible. Under the banner of “no regulation,” the FCC threatens to permit this

network to calcify as earlier telecommunications networks did. Further, and ironically, the FCC’s

supposed “hands off” approach will ultimately lead to more rather than less regulation.

4.

We do not yet know enough about the relationship between these architectural

principles and the innovation of the Internet. But we should know enough to be skeptical of

changes in its design. The strong presumption should be in favor of preserving the architectural

features that have produced this extraordinary innovation. The FCC’s presumption should be

against approving mergers that threaten these design principles, without a clear showing that the

threat would not undermine the Internet’s innovation. No such showing has been made in this

case.

5.

In Part I of this declaration, we explain our background and interest in this matter.

In Part II, we describe the design principles of the Internet, and how they differ from the

principles animating traditional telephone networks. In Part III, we explain why permitting

AT&T to bundle ISP service with network access threatens the structure of the Internet. Finally,

in Part IV we respond to arguments that have been made to permit the merged AT&T/MediaOne

to extend its monopoly to control ISP service.

I.

Background

6.

Lemley is the Marrs McLean Professor of Law at the University of Texas in

Austin, Texas, where he teaches intellectual property, computer law, patent law, antitrust,

electronic commerce and regulation of the Internet. Beginning January 1, 2000 he will assume an

appointment as Professor of Law at the Boalt Hall School of Law, University of California at

Berkeley. He is of counsel to the law firm of Fish & Richardson, where he litigates and counsels

clients in the areas of antitrust, intellectual property and computer law. He is the author of four

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books and twenty-eight articles on these and related subjects, has taught intellectual property law

to federal judges at the Federal Judicial Center, and has testified before Congress and the Federal

Trade Commission on patent and antitrust matters. His articles have appeared in the Yale Law

Journal, the Stanford Law Review, the California Law Review, the Texas Law Review, the Duke

Law Journal, and the Southern California Law Review, as well as numerous specialty journals.

He has chaired or co-chaired a dozen major conferences on intellectual property and computer

law, including Computers Freedom and Privacy ‘98, and he was the 1997 Chair of the

Association of American Law Schools Section on Law and Computers. He received his J.D.

from Boalt Hall School of Law at the University of California at Berkeley, and his A.B. from

Stanford University. After graduating from law school, he clerked for Judge Dorothy Nelson on

the United States Court of Appeals for the Ninth Circuit, and practiced law in Silicon Valley

with Brown & Bain and with Fish & Richardson before coming to Texas.

7.

Lessig is the Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal

Studies at the Harvard Law School, where he teaches courses related to the law of cyberspace.

He has just completed a book, Code and Other Laws of Cyberspace, which analyzes the

relationship between the architecture of the Internet and the freedoms the Internet enables. Lessig

has written many articles, both for scholarly and popular journals, about the Internet and its

regulation. Among scholarly journals, he has published articles in the Yale Law Journal,

Stanford Law Journal, Harvard Law Review (forthcoming), Michigan Law Journal

(forthcoming), Emory Law Journal, and the Proceedings of the IEEE (forthcoming); among

popular journals, he has published articles in The Industry Standard, The New Republic, and

Wired Magazine. Lessig teaches constitutional law, contracts, comparative constitutional law,

and the law of cyberspace. In 1995, he taught the basic antitrust course at the Yale Law School,