Policy Post 6.23 | CDT Issues Broadband Background Paper

CDT POLICY POST Volume 6, Number 23, December 20, 2000

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY

CONTENTS:
(1) CDT ISSUES BROADBAND BACKGROUND PAPER
(2) CDT REPORT FINDS THAT OPEN ACCESS IS TECHNICALLY FEASIBLE
(3) CDT SETS OUT OPEN ACCESS CRITERIA IN COMMENTS TO FCC
(4) FTC APPROVES AOL-TIME WARNER MERGER WITH CONDITIONS ON OPEN ACCESS

(1) CDT ISSUES BROADBAND BACKGROUND PAPER

The Internet's transformation from the narrowband technologies of dial-up modems and slow content delivery to the broadband world of cable modems, DSL, wireless, and other high-speed technologies holds tremendous promise. At the same time, however, critical differences between narrowband and broadband Internet could change the open nature of the Internet and raise the possibility that it might come to be dominated and in part controlled by a small number of companies.

As an objective assessment of the factual and public policy issues raised by emerging broadband delivery technologies, CDT has released a major report entitled "Broadband Backgrounder: Public Policy Issues Raised by Broadband Technology." The report is intended to familiarize policymakers with the full range of public policy issues relating to broadband, with a particular focus on the debate over third party access to cable networks.

The report concludes that the extraordinary growth and innovation of the Internet, its ability to empower individuals, and its role in promoting free expression and democratic values depend critically on openness principles that have characterized the "narrowband" world of dial-up access, and that ensuring "open access" to broadband Internet delivery services across a range of platforms is critical to maintaining First Amendment values.

The Broadband Backgrounder report is available online at http://www.cdt.org/digi_infra/broadband/backgrounder.shtml

(2) CDT REPORT FINDS THAT OPEN ACCESS IS TECHNICALLY FEASIBLE

The CDT Broadband Backgrounder also finds that "open access" to broadband Internet delivery services across a range of platforms is technologically feasible.

Since as early as 1998, public interest advocates, ISPs, cable companies, and other Internet interests have engaged in an aggressive debate concerning the appropriateness and viability of requiring cable companies to open their networks to unaffiliated ISPs. It was suggested early in the debate that cable systems simply could not, as a technical matter, support more than one ISP. Today, however, most acknowledge that a cable system can support multiple ISPs.

Although some important technological issues remain, most of the debate now focuses on non-technological concerns. In effect, the primary focus of the debate has shifted from whether there will be third party access on most major cable systems, to whether such access will be mandated and how access will be implemented and monitored.

Over the next year, the debate will center around whether open access can be achieved through the voluntary action of industry, or whether government must step in to require open access, and over what criteria will determine when a delivery system facility is considered open. CDT hopes that its "Broadband Backgrounder" will contribute significantly toward fruitful debate and resolution of these issues.

(3) CDT SETS OUT OPEN ACCESS CRITERIA IN COMMENTS TO FCC

On December 1, 2000, CDT filed comments with the Federal Communications Commission in response to the FCC's Notice of Inquiry concerning high-speed, broadband access to the Internet. In its comments, CDT argued that:

"Openness" is a central characteristic of the narrowband Internet, and one that must be maintained and implemented in the broadband world.
Voluntary industry action is the most desirable way to achieve openness, but has to date failed to achieve verifiable openness. Unless private industry acts immediately to open its systems in a meaningful and verifiable way, the FCC should step in to require openness.
Critical to an assessment of openness (whether by voluntary action or government mandate) is a clear definition of what openness means. CDT articulates a checklist of the essential elements for openness, to be used to assess whether any facility can be considered "open."
For any openness or third party access regime (whether voluntary or mandated) to succeed, a method and forum to represent and protect the public interest must be put in place. Such a method or forum is necessary to monitor the implementation of openness and third party access and to ensure that vital characteristics of the narrowband Internet are carried into the broadband world.

An important part of the CDT filing is the "Broadband Checklist" - a list of the essential elements of effective third-party access. The Broadband Checklist should serve as a tool to help the FCC and policymakers evaluate whether broadband access offered over a given communications facility can be considered "open" in the same way that the narrowband, dial-up Internet is generally considered to be open and competitive. The criteria should enable policymakers to make reasonable comparisons of openness across different broadband technologies. The "Broadband Checklist" can be found at http://www.cdt.org/digi_infra/broadband/001201fcc.shtml#ex2.

CDT's comments to the FTC are available at http://www.cdt.org/digi_infra/broadband/001201fcc.shtml

Comments responsive to the reply filings are due at the FCC by January 10, 2001. A copy of the FCC's original Notice of Inquiry can be found at http://www.fcc.gov/Bureaus/Miscellaneous/Notices/2000/fcc00355.pdf.

(4) FTC APPROVES AOL-TIME WARNER MERGER WITH CONDITIONS ON OPEN ACCESS

On December 14, 2000, the Federal Trade Commission approved a consent order placing conditions on the proposed merger of America Online and Time Warner.

The AOL-Time Warner merger, as approved by the FTC, represents an important step in the opening of Internet architecture and the evolution of the narrowband Internet to a system based on broadband technology. The requirements of the consent order are critical to assuring that the broadband Internet's characteristics of openness and free expression will not be compromised as the Internet evolves from narrowband technology to an architecture based on broadband technology.

Specifically, the consent order requires AOL-Time Warner to take specific action to open their cable system to competitor ISPs. According to the FTC, the purpose of the conditions in the consent order is to ensure that:

a full range of content and services by non-affiliated ISPs is available to AOL-Time Warner subscribers;
AOL and Time Warner cannot discriminate or limit the ability of non- affiliated ISPs to provide a full range of content and services; and
competition in the market for broadband ISP service remains vital and active.

Detailed information about online civil liberties issues may be found at http://www.cdt.org/.

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