Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of

Inquiry Concerning High-Speed

Access to the Internet Over

Cable and Other Facilities

GN Docket No. 00-185

 

NOTICE OF INQUIRY

COMMENTS OF THE ALLIANCE FOR PUBLIC

TECHNOLOGY

December 1, 2000

 

Introduction

The Alliance for Public Technology (APT) welcomes the opportunity to provide comments on the Federal Communications Commission's (Commission) Notice of Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities.

APT is a nonprofit organization of more than 300 public interest groups and individuals. APT’s members work together to foster broad access to affordable, usable information and communications services and technology for the purpose of bringing better and more affordable health care to all citizens, expanding educational opportunities for lifelong learning, enabling independent living for senior citizens and people with disabilities, creating opportunities for jobs and economic advancement, making government more responsive to all citizens and simplifying access to communications technology. To this end, it is APT’s goal to:

make available as far as possible, to all people of the

United States, regardless of race, color, national origin,

income, residence in rural or urban area, or disability

high capacity two-way communications networks

capable of enabling users to originate and receive

affordable and accessible high quality voice, data,

graphics, video and other types of telecommunications

services.

Without policies in place that ensure nondiscriminatory access to our communication networks, the most vulnerable sectors of our population, who could benefit the most from these applications and others, may be further disadvantaged. APT is particularly concerned that allowing cable companies to serve as the gatekeepers to consumer and citizen access to information service providers will result in the allocation of resources in a manner that does not address social needs and community priorities. An open access cable platform is one essential means for reversing this trend and achieving universal service to connect each to all.

Presently, there is a bipolar national broadband policy. However, regulatory parity and limited forbearance provide promising options to promote adequate investment in all broadband technologies. Therefore, it is incumbent upon the FCC to act quickly to develop a national policy, which applies a common carrier regulatory framework to all broadband telecommunications markets, including the cable broadband market.

The Alliance has consistently urged the Commission to use its authority under Section 706 of the 1996 Telecommunications Act to adopt policies that will promote the widespread deployment of and access to advanced telecommunications services and technologies. Consistent with that view, APT makes the following points in response to the Commission's Notice of Inquiry:

1. Cable Modem service is a telecommunications service subject to Common Carrier Obligations.
2. Cable open access means that cable Internet transmission providers must be subject to Common Carriage obligations of non-discrimination and interconnection.
3. Cable open access is a desirable policy goal.
4. Regulatory parity and limited forbearance is the most appropriate means of achieving cable open access.

5. The Commission should act to ensure open access.

These issues should be considered in the context of a technology neutral strategy for federal action to ensure that all sectors of our society enjoy the life enhancing opportunities of advanced telecommunications services.

1. Cable modem service is a telecommunications service and should be regulated under Common Carriage obligations.

In its Notice of Inquiry, the Commission seeks comment on "approaches to classifying cable modem service and/or the cable modem platform and the implications of classifying the service and/or platform under each category." APT believes that the Ninth Circuit’s classification of Internet access provided via cable modem as a telecommunications service is correct. As the Ninth Circuit concluded, the telephone service linking the user and the Internet Service Provider (ISP) is a telecommunications service, which the Communications Act defines as "the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received." A provider of telecommunications services is a "telecommunications carrier," which the Act treats as a common carrier to the extent that it provides telecommunications to the public, ‘regardless of the facilities used.’"

The FCC has traditionally regulated telephone services under Title II of the Communications Act of 1934, requiring, among other things, that telephone companies as "common carriers" make their services available to the general public at reasonable rates. As telecommunications carriers and therefore common carriers, cable Internet transmission providers are subject to statutory obligations to make their services available, on non-discriminatory terms, to any customer willing to pay the going interconnect rates and to provide open access to their networks.

Further, in AT&T Corp., et al, v.City of Portland, et al, the court subsequent to an analysis of the relevant statutory provisions, held that the Communication Act’s definition of "cable services" as one way, video or other programming services which require subscriber interaction solely for purposes of selection or use of such programming does not describe cable Internet access services. The Court noted that "Internet access is not one way and general, but interactive and individual beyond the ‘subscriber interaction’ contemplated by the statue."

By contrast, the District Court for the Eastern District of Virginia in Media One Group, Inc., et al v. County of Henrico, came to the erroneous conclusion that since the cable operator’s ISP’s service "contains news, commentary, games, and other proprietary content with which subscribers interact as well as Internet access...it falls under the statutory definition of cable service." This conclusion is inconsistent with the historical definition of programming encompassed within the definition of "cable service." Indeed, when an ISP petitioned the Commission to rule that an ISP is entitled to the same status as a broadcaster for purposes of the must carry rules, the Commission, in denying the request stated:

As noted, video programming is defined by the statute in terms of comparability to programming provided by a television broadcast station. The Commission has previously opined that Congress intended the "video programming" definition to take its meaning from the services offered at the time (1984) when the definition was adopted. Second Video Dialtone Order, 7 FCC Rcd 5781, para. 75 (1992). To the extent that IVI or others might dispute this reading of the statute in arguing that "video programming" includes things such as data services or interactive services, we note that the statutory reference is specifically to "video" and to "programming."

But, even more problematic, is the Eastern District Court of Virginia’s rationale for why common carrier regulations may not apply to a cable firm providing what have heretofore been deemed telecommunications services. It is historically accurate to argue that Congress defined cable television as different from a common carrier for purposes of regulation under Title II. However, it is also clear that Congress has since contemplated a marketplace in which cable and telephone firms enter from adjacent markets to compete for each other’s customers by providing services historically provided by the other. Classification of the service by resort to the classification of the firm providing it without adherence to historical practice and statutory intent constitutes a convenient form of regulatory sophistry that the Commission has heretofore avoided. It would create confusion and greater inequity in the manner in which firms may compete for resources to finance deployment and the services they will ultimately be willing to risk providing. Such a result ultimately slows deployment and is contrary to the public interest.

Aside from the statutory and historical justifications for the Circuit Court’s analysis, APT firmly believes it is the Ninth Circuit’s reasoning that provides the Commission with the more appropriate classification for purposes of achieving Congress’ and the Commission’s goals of encouraging market competition while assuring timely access to all Americans.

2. Cable Open Access Means that Cable Internet Transmission Providers Must be Subject to Common Carriage Obligations

Equal and affordable access to the diverse sources of information and life enhancing services that cable Internet offers requires that networks enable consumers to choose their ISP from a variety of competitors. Without such provisions there will be a proliferation of closed networks with proprietary ISPs. This will contribute to the high cost of advanced services for consumers and will only widen the gap between those who currently fall on different sides of the digital divide. It will also create problems of interoperability among networks and work against the goal of connecting each to all. Market forces alone have not solved all of these problems in the past, nor are they likely to do so in the future.

An open access cable platform, when coupled with proactive policies to implement Section 706, provides a promising option to spur investment in the network for delivering advanced services to the homes of all Americans. In addition, open access will facilitate a greater sharing of information across networks, ensuring that the potential benefits of advanced telecommunications services are not restricted to certain networks and, therefore, to certain end users.

III. Cable Open Access is a Desirable Policy Goal

As previously stated, an open access cable platform is one essential means for achieving universal service and connecting each to all. Providing greater choice and opportunity for all ISPs would speed deployment and expand the choice of providers for consumers. Open architecture is also essential to spur innovation on the Internet. In contrast, closed telecommunication platforms violate this concept and, in fact, stifle innovation.

What APT fears is that the Commission’s current policies will result in considerable delay in achieving open access, adversely impacting the ability of many unaffiliated, non-contracting ISPs to compete and survive. This delay hampers the building of a common carriage framework so essential to the proactive policies recommended by APT to breathe life into the statutory commitment of Section 706.

4. Regulatory Parity and Limited Forbearance is the Most Appropriate Means of Achieving Cable Open Access

The Ninth Circuit’s Cable Modem case presents the Federal Communications Commission with the opportunity to repair the problems that the 1996 Telecommunications Act established with regard to investment in advanced services, particularly to underserved communities. Regulatory parity can create the incentives that are needed to overcome the inadequate deployment of advanced telecommunications services to these markets.

The present cable Internet market promotes closed networks, limits consumer access to information, and adversely affects interoperability. Therefore, it is clearly not in the public’s interest for the Commission to exercise forbearance with respect to applying open access provisions to cable Internet services. Doing so would also contradict the Commission’s own precedent it established in the case of other (non-cable) telecommunications carriers.

Section 201 (a) of the Act provides that "it shall be the duty of every common carrier engaged in interstate...communications by wire...to furnish such communication service upon reasonable request…." Based on the Act and Commission precedent, it is evident that this section applies to requests by Internet service providers to obtain the very same telecommunications services that cable modem providers provide to their own subscribers. First, cable Internet transmission service providers are common carriers when they provide cable Internet services, and therefore plainly fall within the scope of section 201(a). Second, Commission precedent makes clear, "the provision of leased lines to Internet service providers," the very telecommunications service that ISPs would obtain from cable Internet providers, "constitutes the provision of interstate telecommunications."

Third, Commission precedent requires that Internet service providers be treated as end users with respect to obtaining access services from telecommunications carriers, and not as common carriers. Therefore, cable broadband providers must not only make their "telecommunications service" available upon reasonable request to unaffiliated ISPs, they must offer this service on non-discriminatory terms.

V. The Commission Should Act to Ensure Open Access.

Section 706 of the Act explicitly requires the Commission and the states to deploy advanced telecommunications capability to all Americans in a "reasonable and timely fashion" using "methods that remove barriers to infrastructure development." Open access requirements should be implemented in a similar fashion

In spite of this, the FCC has signaled its desire to forbear from regulation under Section 401(a) of the Act. It has done so in order not to encumber the nascent cable broadband market with the same problems traditional telecommunications carriers have encountered in the deployment of other broadband services such as digital subscriber line (DSL). However, the Ninth Circuit's decision requires the FCC to align regulatory forbearance on the telephony side with the forbearance that has been exercised with these other technologies. Not doing so creates an unfair market advantage for cable providers who, according to the Court’s ruling, offer broadband services equivalent to those of other telecommunication carriers.

Timeliness will also be economically efficient, as cable broadband networks designed from the start with open access capabilities will be cheaper than those required to add these capabilities a year or more from now.

Conclusion

Open access in a market-driven system is a bedrock principle, but its implementation merely begs the question of how Section 706 is to be implemented. From APT's perspective, open access is an essential part of a common carriage foundation for advancing proactive policies to make the marketplace work for everyone--policies that facilitate investments of competitive providers in crafting digital age "tools" to the needs, priorities, and cultures of communities marginalized by market forces. Lacking effective "market development" infrastructure to craft those tools, underserved communities--rural and urban alike--have no way of getting life-enhancing uses of the advanced technologies, "registered" in the investment plans of providers for aggregation of effective demand and building real markets.

The Commission must immediately adopt new policies to accelerate open access for cable Internet services. In doing so, it should consider the models presented by ongoing developments in the broadband market such as the AOL/Time Warner merger. Prompt, deliberate action will facilitate the deployment of advanced telecommunications capabilities to all Americans, which in turn will hasten the development of these technologies to improve education, health care, disability access, employment opportunities, economic development, and the democratic process. Accordingly, APT urges the Commission to issue, as quickly as possible, a NPRM along the lines suggested in the above discussion.

Respectfully submitted,

Pace Duckenfield

Counsel

Alliance for Public Technology

919 18^th Street, NW

Suite 900

Washington, D.C. 20016