Summer-Fall 2001

The Debate Over HR 1542 - The Internet Freedom and Broadband Deployment Act: Response from the Alliance for Public Technology
by Allen Hammond

There's been much discussion about HR 1542, the Tauzin-Dingell bill. Whatever its fate, the following piece by Audrie Krause and the response by Al Hammond and APT reflect basic differences about telco policy well into the future. For more on the bill see the CyberTelecom News, the Washington Internet Project's legislation page, the two opposing articles in ISP Planet, and the Association for Community Networking exchanges.

NetAction has suggested that the Internet Freedom and Broadband Deployment Act of 2001 (H.R. 1542) threatens broadband Internet access because it (a) removes the incentive for incumbent local phone companies (ILECs) to open their markets to competition before entry into long distance; and (b) will put ILECs in a position to monopolize broadband and dial-up services. Further NetAction argues that the bill will not ensure broadband service availability to rural areas while simultaneously expanding the digital divide. Finally, NetAction argues that the ILECs are not deserving beneficiaries of the bill's largesse because the ILECs didn't keep their prior promises to deploy fiber optic services in exchange for removal of rate of return regulation.

The Alliance for Public Technology (APT) applauds NetAction's decision to raise the public consciousness on these issues. However, APT would like to emphasize a somewhat different and ultimately, we believe, more fundamental point about the debate over H.R. 1542. The issue is not H.R. 1542 or any other legislative vehicle for accelerating ILEC entry into long distance, but:

  • Timely development and equitable deployment of technology neutral, accessible broadband communications infrastructure and services to all Americans at affordable rates; and
  • Equitable implementation and enforcement of regulations governing like competitors competing in the same market.

Too much of the current debate mirrors arguments put forth by corporations seeking to protect or expand market share in the converging marketplace for telecommunications and data services. While APT is not unsympathetic to the understandable concerns of the companies and their stockholders, APT believes that the public's interest in available, accessible, affordable broadband communications must remain the paramount concern. This means that those competing in the market must invest in the deployment of infrastructure and the provision of service to all communities regardless of socioeconomic status, race, class or geography. Only in this way can we assure that no American is left behind. But to do so, we must assure that all who invest and compete, fairly contribute to the efforts to deploy and provide.

APT is convinced that an unwavering and uncritical insistence on unbundled access to newly minted broadband data infrastructure and services is as problematic for telephone as it is for cable and wireless competitors. It provides a significant disincentive for investment because the return on investment is severely undermined. This in turn facilitates a tendency to “game” the regulatory system at the expense of the public interest because the firms' interests and the public's interests are at odds. If the regulatory environment is fair to all competitors, and all contribute in an equitable manner that assures fair rather than favored competition, then the public and the companies' interests become one and the same. In the final analysis, it does not matter whether it is a national or local cable, telephone or wireless firm seeking to keep its networks closed by refusing to be interoperable, interconnected and open to all. To the extent that there are unserved areas, dead end or “protected” networks, competition cannot flourish and Americans as citizens, learners, patients, businesses and consumers will suffer. To the extent the regulatory system ostensibly operated in the name of the people, facilitates this result, it is unfair and ill advised.

On the other hand, any effort to remove regulation must be more than just “even handed.” It must also assure the timely development and equitable deployment of technology neutral, accessible broadband communications infrastructure and services to all Americans at affordable rates. This means the development of reasonable guidelines and timetables for deployment to avoid electronic redlining; an ongoing equitable means of financing timely equitable deployment of infrastructure; provision of services at affordable prices; and a fundamental acknowledgment that our evolving broadband infrastructure is a national resource that must be available to all.

Allen S. Hammond, IV is a Professor of Law at Santa Clara University School of Law and board member of the Alliance for Public Technology. On April 25, the Alliance for Public Technology issued a press release in support of HR1542. Here Professor Hammond provides a reponse to Audrie Krause and NetAction. APT Executive Director Sylvia Rosenthal also points to Nathan Newman, who previously served as a Project Director at NetAction, for another defense of the Tauzin bill from another perspective in a special piece for the Progressive Populist. For more on APT, a nonprofit membership organization fostering access to affordable and useful information and communication services and technologies by all people, including access to its most recent newsletter, check out their web site.

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