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The Federal Communications Commission’s approval, with conditions, of the AOL-Time Warner merger represents an important milestone in the development of the Internet. AOL, the nation’s largest Internet service provider, will now be able to offer its customers the richer content and faster delivery speeds possible over the fat pipes of Time Warner’s cable network. Yet the FCC’s decision and the requirements imposed earlier on the merger by the Federal Trade Commission do not mark the end of the debate about broadband Internet access. To the contrary, they represent the beginning of the hard work necessary to ensure that the open character of the old, narrowband Internet is preserved across all broadband technologies and for all participants. In its short history, the narrowband Internet has been based on a user’s ability to dial into this global information network over traditional telephone lines. The architecture of the narrowband Internet and the common carrier obligations of the phone companies produced the unprecedented openness that has distinguished the Internet. Every individual can be a publisher, without having to buy access from the owners of traditional print and broadcast media. Every listener can access a seamless Web of content, without significant governmental or corporate limitations. As federal District Judge Stewart Dalzell stated in one case challenging Internet censorship, the “Internet is a far more speech-enhancing medium than print, the village green, or the malls.” Now, the Internet is evolving from the narrowband technologies of dial-up modems and slow content delivery to the broadband world of cable modems and other high-speed technologies. Faster transmission speed and the “always on” nature of broadband connections are the important first benefits of broadband delivery. Soon companies will be offering access to much more video and other high bandwidth content than would be possible over a normal telephone line. All of this points toward the realization of the Internet’s promise for commerce, education, health care delivery, and free expression. But while the possibility of fast delivery of quality content is a cause for optimism, it remains to be seen whether the Internet will continue to deliver content from everyone to everyone on an equal basis, so that individuals can continue to be able to publish and access information on an equal footing. Taken together, the conditions imposed on the AOL-Time Warner Inc. merger by the FTC and the FCC represent a major and substantial step toward accomplishing this goal. EVENHANDED TREATMENT The FTC took the first action. Last December, it approved the merger but required that the merged entity allow at least three unaffiliated Internet service providers to compete on a level playing field with any high-speed AOL services offered over Time Warner’s cable lines. The FTC reserved the right to review and approve the privately negotiated deals struck between AOL Time Warner and unaffiliated ISPs, to ensure that the ISPs are treated evenhandedly. The FTC further mandated that AOL Time Warner offer to unaffiliated ISPs the same levels of service (in terms of speed and reliability of delivery) as AOL Time Warner provides to itself. In mid-January, the FCC piggybacked on the FTC merger order and approved the AOL merger while imposing some additional conditions. For instance, AOL Time Warner must permit any unaffiliated ISPs that offer service over its cable systems to control the entire relationship with the ISPs’ Internet customers. AOL Time Warner, for example, cannot insist on being involved in customer billing, nor can the merged company require that its name or logo appear on the “first page” seen by the unaffiliated ISPs’ customers. Also, the FCC required — with greater specificity than the FTC — that AOL Time Warner ensure that the technical performance and features of the services offered to unaffiliated ISPs match AOL Time Warner’s own service offerings. These are good first steps. But going forward, policy-makers and Internet users must be assured that the conditions of the merger work to effect open access. It is critical that other cable networks be held to these similar standards and that other broadband technologies provide open access. The FCC’s merger order contains a few positive indications that the commission may continue to move in the right direction toward broad open access. As a threshold matter, the FCC concluded that residential broadband access to the Internet constitutes a discrete market that is distinct from the old narrowband dial-up market. The FCC recognized that broadband access offers features and capabilities simply not available over a dial-up connection. Significantly, the commission also concluded that, geographically, the relevant market is a local market — what is relevant is whether users in a particular community have a wide range of choices for broadband service, not whether cable is competing with other broadband technologies across the country as a whole. The FCC also determined that cable system operators have both the incentive and the ability to favor their own ISPs and thus discriminate against unaffiliated ISPs that want to compete in the broadband market. The commission further recognized that inappropriate discrimination could occur even when a cable operator agrees to allow unaffiliated ISPs to offer service over the cable networks: the cable operator could price-discriminate, or could far more subtly discriminate in the quality of service the cable systems makes available to the unaffiliated ISPs. SHIFTING FOCUS? These conclusions provide support for the FCC to take strong action to ensure that all cable operators provide open access to unaffiliated ISPs. The FCC initiated a formal inquiry into the cable open access question, and its conclusions about the AOL Time Warner merger should lead the FCC to use the current inquiry to achieve broad open access. A significant uncertainty, however, is how President George W. Bush’s new commission chairman, Michael Powell, may shift the focus or direction of the agency. Powell has seldom favored additional regulatory requirements, and in press statements about the FCC’s approval of the merger, Powell suggested that he has doubts that a broad open access mandate is necessary. On the other hand, although Powell dissented from portions of the FCC’s merger approval order, his primary concern appeared to be not the underlying merits of the FCC’s order, but whether the FTC had already taken care of problems that might have existed in this particular situation, making the FCC’s additional conditions superfluous. The FCC’s AOL Time Warner decision also highlighted the vital need to identify a set of open access criteria to monitor the Internet’s transition from narrowband to broadband. As the FCC noted, the voluntary Memorandum of Understanding between AOL and Time Warner (in which the merged company stated its intent to provide at least some form of third-party ISP access) simply did not address the full range of issues and problems raised by the bottleneck control exercised by cable operators over their broadband cable facilities. What is needed is a clear, comprehensive way to evaluate the implementation of openness of particular cable networks and to compare openness across different systems and technologies to assure that the Internet’s openness is preserved. BROADBAND CHECKLIST Any broadband open access checklist (such as one that the Center for Democracy and Technology has proposed, available on its Web site) must recognize the need for users’ unfettered access to content and content-delivery technologies. Can Internet users access and receive any lawful content on the Internet, free from any limitation imposed by the owner of the broadband facility? Do users have a choice of ISPs on nondiscriminatory terms and technical conditions? Can Internet users use any generally available Internet technology (such as Web servers) to deliver content to the Internet, free from any limitation imposed by the broadband facility owner? From the perspective of ISPs: Does the facility owner limit the number of ISPs that can offer service over the broadband network? Does an ISP affiliated with the facility owner have any advantages over an unaffiliated ISP — in terms of speed of access, technical functionality, ability to offer service to customers, operational support systems, and the procedures and timetable used to offer service to new customers? Whether the evaluation process is conducted by the FCC or by some other entity is less important than the need to apply these criteria not only to AOL Time Warner but also to all cable networks and to all broadband facilities. Equally important, the process must include the representation of the public interest. The democratizing free speech values at stake in the open access debate and their importance in creating a rough parity of speakers require that the decision-making process involve not only corporate interests but also the greater public interest community. To do otherwise would exclude precisely those that most need protection and have the most to lose if the openness of the Internet is lost in the name of streaming video and an “always on” Internet. Jerry Berman is executive director of the Center for Democracy and Technology in Washington, D.C. The CDT is an independent, nonprofit organization advocating free expression and user empowerment on the Internet, which receives funding from sources including AOL Time Warner, other Internet service providers, technology companies, and foundations. The comments in this piece draw on the CDT’s recently released “Broadband Backgrounder: Public Policy Issues Raised by Broadband Technology.” Its Web site is http://www.cdt.org/.

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