Undergird Open Access With Firm Public Policy
About 100 million Americans now regularly log onto the Internet. Why so many? Because some 6,000 Internet service providers are scrambling to provide consumers with quality, affordable services. Key to this growth is the fact that any ISP can reach every household on the same rates, terms and conditions as any other ISP.
For more than a year now, a battle has been raging over whether the AT&T-led; cable TV industry can change the way access to the Internet operates. Cable TV would like to run the next generation of high-speed, multimedia, broadband Internet services on a closed, proprietary basis. The recent announcement of a partial deal between AT&T; and Mindspring, an ISP not affiliated with AT&T;, has given rise to the claim that cities and counties no longer must wrestle with this issue.
But at best, this private deal only underscores the need for a firm public policy in support of open access. Three of the six parties who entered the negotiations did not sign the final agreement, including Excite@Home Corp. (the ISP in which AT&T; is a major stockholder), a public interest representative and the city of Atlanta. In addition, Mindspring, which did sign the agreement, says the deal makes bad public policy, because it requires independent Internet service providers to wait two or more years to get unfettered access to consumers.
AT&T;’s voluntary concessions will not provide nondiscriminatory access. Under its scenario, consumers would have to become a customer of AT&T; and pay for all of its network before gaining access to broadband Internet communication services. Its ISPs also would be given preferential treatment to ensure that their service is quickest and clearest.
Cities must keep pushing for open access. To the extent that AT&T; has made any concessions, it is only because local governments in six states have passed laws requiring open access. If open access is not enacted in local ordinances or written into franchise agreements, the pressure will be off, and the willingness to sign deals will evaporate.
A decision in San Francisco is pending and the issue is alive in Los Angeles, while Madera County has ordered open access. And at least one local authority in each of the states of Oregon, Virginia, Florida, Massachusetts and Missouri now requires open access.
In the months ahead, changes in the political environment should reinforce the public policy arguments in favor of open access. These include:
* Open access will be easier to win during the cable franchise renewal process, as legal questions about the right to demand it as a condition of the franchise will disappear. Many local authorities, receptive to the open access idea, nonetheless rejected such a requirement during the process of transferring ownership but can take the issue up as they renew the franchises.
* The ability to browbeat communities with threats to withhold investment will diminish, since post-transfer investments will already have been made.
* AT&T;’s admission that open access is doable and the implementation of light-handed conditions imposed by pro-open access local franchise authorities will lay to rest arguments about technical infeasibility or administrative difficulty.
Localities that have demanded open access early will be ahead of the game. They will enjoy broadband architectures that are more hospitable to nondiscrimination with fewer exclusive business relationships that need to be cleared away. The independent ISP community should blossom in these localities, since the creativity of the Internet is based on open access, and the Internet’s most vibrant attributes derive from local and regional content providers.
Independent ISPs that have been in the forefront of the fight for open access find AT&T;’s offer wholly inadequate. Private negotiations are not likely to produce sound public policy. Also, thousands of smaller ISPs that don’t have the bargaining power need a clear public policy that ensures they will have fair access to consumers, who will be the ones to benefit.
