Waiting for Broadband, by Leslie Harris

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Waiting for Broadband		Leslie Harris is the founder of Leslie Harris and Associates, a government and public relations firm which provides Washington representation and strategic services principally to nonprofit organizations, specializing in telecommunications, Internet, First Amendment, privacy and education policy. Ms. Harris was previously the Director of Public Policy for People for the American Way and Chief Legislative Counsel for the Washington Office of the ACLU. She is also an adjunct Professor of Law at the Washington College of Law at American University and a Wasserstein Fellow at Harvard Law School.
Leslie Harris In recent months, newspapers have been full of stories about the promise of broadband. Every week, a new corporate telecommunications megamerger is announced with the promise of ubiquitous, always on, broadband connections to millions of Americans. But community networks and community technology centers need to look beyond the hype. Because, as cities around the country have found out (see sidebar), industry plans for broadband may build the bottom line but they may not serve the public interest. Most folks seem to agree that ubiquitous access to broadband will transform the Internet and bring new educational opportunities, health services, cultural information, and civic opportunities to our communities. The very nature of the Internet is changing before our eyes: just a few years ago, the vast majority of Internet content was pure text; today, bandwidth-intensive graphics play an increasingly important role. And while a picture may say a thousand words, a picture uses an awful lot more bandwidth. Add streaming video and audio, along with java applets and other emerging technologies, and community demand for bandwidth will soar. And service providers are talking the right talk, saying they'll deliver on the promise of broadband "any day now." But for those who care about the public interest, there are hard questions that must be asked: Broadband for whom? At what cost? And with what restrictions? Right now, the deployment of both digital subscriber lines (DSL) and cable broadband give cause for concern, as some phone and most cable companies attempt to control both the content and conduit that reaches the home over high speed. This trend is becoming more and more apparent, as cable and phone companies and their affiliated Internet service providers (ISPs) seek to become gatekeepers to high speed pipes by using their own portals and search engines to control how users access the Internet and at the same time keeping other Internet service providers off of their high speed networks altogether, either by closing the system outright or pricing competitors out of the market. Low cost community ISPs, regional ISPs, and unaffiliated national services will be unable to provide their customers with high speed broadband access unless the consumer pays twice: once for the affiliated ISP and then again for the preferred provider. Even then, the broadband companies' affiliated ISPs will set the terms and conditions of service. As one commenter observed, "whatever this is, it isn't the Internet." For the community network community, the broadband transition presents a host of issues, not the least of which is how to bring broadband to the communities they serve. Recent reports have indicated that the digital divide is closing, as the cost of computers and Internet access has continued to decline. But if a few giant gatekeepers control access to broadband, the digital divide may become an abyss. As has happened before, major monopolies have no plans to bring services to lower income communities because they view these consumers as reduced revenue sources. Cable providers such as AT&T Broadband Services (formerly TCI), for example, plan to bundle broadband with phone and cable service and offer that package exclusively to so-called "high end" customers. Not only are they failing to upgrade the cable pipes in lower income areas for broadband, they wont let anyone else -- such as community-based ISPs -- use the existing cable infrastructure to offer broadband services in these "redlined" communities (See "Halt Called for AT&T-TCI Merger Until TCI Non-Compliance and Civil Rights Record Examined," ). What's more, as community networks shift from merely providing access to providing ever increasing amounts of local and community oriented content, there is a very real danger that broadband gatekeepers will push users away from "free" community resources to similar, commercially affiliated sites. The business strategy of broadband service providers like @Home is built around steering customers to the web sites of commercial partners through the provider's caching server, portal, search tools, and web hotlists. Without the financial resources necessary to partner with a nationwide broadband Internet service provider, the quality content and services offered by community networks and other civic and nonprofit institutions will largely be bypassed in the broadband world. Much like towns left behind by the interstate highway system in the 50s, nonprofit content sites bypassed by the broadband service provider are likely to find it hard to attract hits and may be relegated to relative obscurity. Finally, if broadband access is controlled by a handful of gatekeepers, the open environment, which allows free expression and diversity to flourish on the Internet, may be put at risk. In a gatekeeper mediated Internet, the company's ISP can decide how extensive your Internet access should be. Already, TCI@Home has tried to prevent its subscribers from using the broadband connection for any business-related purpose, even checking e-mail. @Home's service agreement also limits the amount of video that can be down-streamed, and restricts the ability of subscribers to use certain Internet protocols. Not only can a gatekeeper limit what you can do on the Internet, it can exert extraordinary "editorial control" over content, selecting the information that is placed on its portal, limiting the subject matter and the discussions in chatrooms, censoring the content of personal web pages, placing restrictions on e-mail or even limiting the sites that may be accessed on the Internet altogether. The point is not that any particular company has or is likely to engage in such tactics, but that in an environment where competition is eliminated, such practices are possible. Fortunately, there is a relatively simple solution -- a requirement that broadband service providers provide nondiscriminatory access and pricing to all interested Internet service providers. That's what Portland has ordered AT&T Broadband Services to do and that's what consumers in Seattle, Los Angeles, and Dallas among others, have asked their cities to do as well. Even some states have begun to look at requiring open broadband. In Washington, DC, ISPs and public interest groups have asked the Federal Communications Commission to mandate open access for broadband providers, and Congress has begun to explore the issue with hearings and legislation. The Internet was never intended to be a medium controlled by a few giant gatekeepers. Competition has spurred new services and new technologies and made the Internet affordable and democratic. The fight to keep the Internet open as broadband is deployed is far from over, however, and community networks need to get involved. If you'd like to learn more about the deployment of broadband services and how you can help, see the No Gatekeepers coalition website and "The Architecture of Internet 2.0" . For an alternative perspective, see James Speta's comments to the Senate Commerce Committee on May 3, 1999.		Around the Country The open access to broadband issue has become one of the hottest technology issues in the country. Here's a quick summary of what's going on: Congress Both the House and the Senate have been looking at the broadband issue in recent months. In the Senate, the Senate Commerce Committee held a hearing on the development of broadband on April 13, 1999. There were strong industry voices both for and against open broadband, but the voices of consumers and communities were not included in this hearing, although Sen. McCain promised to hold a future hearing to discuss issues of concern to those communities. That follow up hearing has not yet been scheduled. In the House of Representatives, Reps. Bob Goodlatte (R-VA) and Rick Boucher (D-VA) have jointly introduced legislation to force all broadband providers, regardless of the technology used, to provide open access if it is technically feasible and can be done in an economically reasonable fashion. The legislation also allows phone companies to avoid some regulation if they deploy DSL services. Their bills, HR 1685 and HR 1686, have been referred to the Commerce and Judiciary Committees but no hearings have yet been scheduled. Federal Communications Commission On January 28, the FCC released a Report to Congress dealing with the deployment of broadband services to the public. This document, which was required by Section 706 of the Telecommunications Act of 1996, said that the FCC believed that broadband services deployment were proceeding well. It also stated that because the broadband industry was still in its infancy, regulation to deal with problems such as the open access issue would be premature. The FCC's decision has put off the issue of open access to broadband networks for the time being. Several articles in the trade press have roundly criticized the FCC, pointing out that failure to act could well strangle small Internet service providers (ISPs) and deny consumers choice and a competitive marketplace. In February, the FCC approved the merger of AT&T and TCI without imposing any open access requirements. Shortly thereafter, AT&T announced that it would be purchasing the nation's third largest cable company, MediaOne. Assuming it passes regulatory muster, that acquisition will make AT&T the largest cable company in the United States. Obviously, this concentration of media power in the hands of one company is sure to bring the open access issue back to the fore. Texas At the state level, Texas has actively been pursuing open access to cable and DSL services. In the House, HB 3339 was introduced by Rep. Kim Brimer on April 26, 1999, to require nondiscriminatory access by all wireline broadband service providers throughout Texas. It is currently pending before the State Affairs Committee. On the Senate side, an identical bill (SB 1743) had been introduced by Sen. Chris Harris. SB 1743 was referred to the subcommittee on Technology and Business on March 15, 1999. Neither bill has had hearings yet. California On January 7, 1999, the California Public Utilities Commission (CPUC) decided not to force incumbent local exchange carriers (ILECs) to provide shared access to local phone lines. Instead, ISPs and CLECs selling DSL service must lease a second, separate phone line into the home in order to provide DSL services -- effectively increasing the cost for competitors and their consumers. In February, Representative Lou Papan introduced AB 991 in the State Assembly in order to force ILECs to share phone lines for DSL services. The bill was re-referred to the Committee on Appropriations on April 28, 1999. Portland and Multnomah County Portland was the first city to openly condition its approval of the AT&T/TCI merger on the opening of the cable broadband network to competitive Internet service providers. The open access position was supported by a number of organizations, including the Oregon Internet Service Providers' Association, Oregon Consumer League, Citizen's Utility Board, and Oregon Public Internet Research Group. After talks between the city of Portland and Multnomah County, on the one hand, and AT&T and TCI, on the other, fell apart in early December, the Portland City Council and Multnomah County Board of County Commissioners voted to condition their approval of the merger on opening the network. After several weeks, AT&T and TCI rejected the conditioned approval, and lawyers for Portland rejected the merger. AT&T and TCI promptly filed suit. The matter is currently in the courts, although a compromise solution may be reached. Seattle and King County Just as the fight in Portland was heating up, the issue took center stage in Seattle and King County. The issue of Seattle's approval of the AT&T/TCI merger was complicated by the long history of poor service by TCI in the area. Both King County and the city of Seattle watched the example of Portland and began to make moves towards conditioning their approval of the merger on open access, supported by a broad coalition of Internet Service Providers, consumers, and others. As one editorial put it, Seattle should "Join [the] Anti-TCI Coalition." As the fight over the approval of the merger unfolded, the open cable access issue became the centerpiece of Seattle's efforts to improve cable on behalf of its citizens and consumers. On February 8, the city of Seattle released a tentative agreement with TCI and AT&T, under which they would not mandate open access but would reserve the right to do so in the future. Also on February 8, several members of the King County Board of Commissioners put out a press release in which they openly came out in favor of requiring access in King County. Both Seattle and King County voted to approve the merger, subject to a study on open access, on February 16, 1999 Spokane Spokane also dealt with the open broadband issue, although somewhat less directly than Seattle and Portland. A competitive service provider had already asked TCI to allow open access to the network using the leased access rules. Because of the uncertain jurisdictions in the AT&T/TCI merger case, the city attorney cautioned the city against requiring open access. In the end, the city council approved the merger � but attached a resolution cautioning AT&T Broadband Services to tread softly since the city council would be monitoring the progress of competition in the market and could revisit the issue in the future. Since that warning, the competitive service provider seeking to use leased access, IVI, has been denied access to the cable network by AT&T. Following several petititons by IVI, the city attorney decided that the open broadband issue needed to be addressed by the FCC. Los Angeles In Los Angeles, after a spirited fight, the City Council approved the TCI/AT&T merger on January 26, 1999. However, they also mandated that a study be done on how the city could implement open access for LA cable subscribers. Several groups filed comments in the Los Angeles proceeding, urging an open broadband requirement, and also participated in a hearing in Los Angeles on the issue. The study and recommendations, which are expected to be released shortly, should be adopted by the City Council as the model for open Internet access that all cable companies will be required to adhere to in the city. San Francisco Despite the fact that the franchise agreement for TCI stipulated that the franchise couldn't be transferred without the approval of the Board of Supervisors, TCI and AT&T merged without getting approval from the SF Board of Supervisors. Although the Mayor's office recommended simply approving the transfer, the Board is considering tying conditions to the approval of the merger, although the current franchise agreement doesn't expire until 2005. Open access, free cable access for the SF public library, decreased or frozen rates, and additional money for public access programming are all issues that Supervisor Amiano has said he would like addressed in the merger approval. The Public Utilities and Deregulation Committee of the Board of Supervisors met on May 4th to discuss a possible settlement. Denver Englewood, CO, the home of TCI, is only a stone's throw from Denver. Yet, despite that fact, activists in Denver were almost able to convince the Denver City Council to condition the merger of AT&T and TCI on the adoption of an open access standard. However, some within the city felt that the issue was best decided at the federal level, rather than by the city. In the end, after TCI threatened not to provide any advanced services to the community, the Council decided on February 1, 1999, to approve the merger, but also decided to subject the cable franchise to a referendum later this year. Dallas Dallas was also a hotbed of activity on the open cable issue during the AT&T/TCI merger. A number of local service providers, businesses, consumer groups, and others banded together to lobby the local city council. Their website generated several thousand responses from citizens virtually overnight. When the issue came up before the city council, six of the fifteen members of the city council voted to require open access. Several council members who did not vote for open access indicated that they would bring up the issue again when the cable franchise in Dallas is renegotiated in September, 2000. Pittsburgh In Pittsburgh, the issue of open access was front and center throughout the debate over approving the transfer from AT&T to TCI. However, after AT&T filed a lawsuit against Portland, the Pittsburgh City Council decided that it would defer to the Federal Communications Commission to decide the issue. For more information, go to www.nogatekeepers.org .