Cyber Guru Favors Regulated Open Access

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February 28, 2000 (2:24 PM EST)

By Mary Mosquera,

WASHINGTON, D.C. -- A cyber guru who has given technical guidance to the federal judge in the Microsoft antitrust case has thrown his support to mandating open access in cable broadband.

Harvard cyberspace law professor Lawrence Lessig said the Federal Communications Commission should impose minimal regulation to guarantee cable companies open their high-speed networks to ISPs other than their affiliated cable-modem service.

The Internet, so far, has been a space that does not discriminate due to policies that rule the telephone carriers that built the infrastructure, he said.

The $156 billion AOL-Time Warner merger has made open access in high-speed Internet more important than ever, say consumer groups, small ISPs, and phone carriers grouped in the OpenNET Coalition. AOL, once the zealous champion of calls to regulate open access, has said it decided, like AT&T, to let the market lead.

Two Senate committees focus their attention Tuesday and Wednesday on the record AOL-Time Warner merger. Critics say that merger, like the AT&T-MediaOne merger still under review, will put too much power over who and what gets on the Internet in the hands of two mammoth companies. AT&T and AOL through their acquisitions will gain large swaths of cable subscribers. They also will each own one of the two current cable-modem services; AT&T became a majority owner of ExciteAtHome with its TCI purchase. AOL through its Time Warner merger will own RoadRunner. And AOL and AT&T will have a connection through Time Warner Entertainment.

Minimal Regulation Spurs Innovation
The FCC provided the environment that made the Internet's development possible, Lessig said.

"This is a space that was made possible by an extraordinary act of regulation, by the break up of AT&T, and by the FCC's continual enforcement of essentially an open-access requirement on the telecommunications infrastructure," Lessig said. "This first move cleared the space and established an open access for what I would call end-to-end platform and subsequently this economic miracle that we see right now."

Similarly, policymakers need to protect the Internet's architecture via high-speed cable modems. Minimal regulation will spur more innovation and preserve the diversity of speech and opportunity the Internet has so far protected, he said. Lessig said he has spoken with federal regulators at the FCC and the Federal Trade Commission, and with congressional staff about open access.

"By not being clear about regulatory policy, we encourage the different business models that discriminate. The government by doing nothing is encouraging precisely the problem," Lessig said.

The sentiment among policymakers has been not to regulate the Internet, but that is what the FCC has been doing while it assures the telecommunications system remains open access, he said.

In fact, many in Congress want to eliminate regulation of telephone carriers because it is slowing deployment of digital subscriber lines, or DSL, their choice of high-speed technology.

The FCC ought to adopt minimal regulation now, he said. "If we don't adopt this policy now, there is no doubt that down the road, just as we have seen with cable previously, Congress will have to revisit whether certain bundling should be permitted, or if certain content discrimination should be permitted, or certain market concentration is too great," Lessig said.

"Once you give [the cable companies] monopoly power, are going to be willing to spend the present net value of their monopoly to defend it. If you set it up initially so that they can recoup their investment, that creates an enormous incentive to go back to some open architecture," Lessig said. And if open access slows broadband deployment, do what it takes to overcome the foot-dragging. "Subsidize them, give them tax breaks, fund them. ...Do whatever you want, but don't give them monopoly power," Lessig said.