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COMMUNET Home

COMMUNET Home

COMMUNET  January 2000, Week 1

COMMUNET January 2000, Week 1

Subject:

The Open Access Debate

From:

Curtiss Priest <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Fri, 7 Jan 2000 10:14:29 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (288 lines)

Please note that this transmission conforms to The Digital Millennium
           Copyright Act of 1998 (see below)

                W. Curtiss Priest, Ph.D.
          Center for Information, Technology & Society
           466 Pleasant Street Melrose, MA  02176
   E-mail: [log in to unmask], Voice: 617-662-4044, FAX: 617-662-6882

           This document may be distributed freely

                 January 7, 1998

                An Open Discussion
           with Government, Foundations, Non-profits
                 and Grassroots Efforts

                  CITS IT WATCH
             Information Technology Issues

                 Public Issue #53:

                    "Open Access"

                  ***************

         Commentary by Dr. W. Curtiss Priest, Director:

In the early days of telephone there were 100's of small telephone
companies throughout the first decade of 1900.

However, the economies of "scale" (size of a firm) and scope
(horizontal and vertical integration of a firm) gave AT&T the edge
as it gobbled up small firms (or put them out of business).

A few years ago, many pointed to the flourishing of "mom and pop"
ISPs as an indication that unfettered competition in telecom-
munications would not walk the inevitable road towards a monopoly.

However, recent events have raised serious doubts about the
possibility that many flowers will bloom, and, in its place,
we have a few tall standing sunflowers.

***

The current issue is whether cable modem subscribers can choose
their own ISP without having to pay twice for the option.

With a cable modem, the ISP (Internet Service Provider) is,
simultaneously, the cable operator's Internet infrastructure.

For cable providers to give "open access" -- i.e. -- to not
charge for the "Internet" part of the infrastructure (already
in place) and, rather, let an ISP provide the "service" is
somewhat redundant, but, for example, one's e-mail address can
remain the same.

The major corporate voice for "open access" has been AOL.

Why pay $19.95 a month, extra, to AOL, when AT&T through its
own ISPs (Excite@Home and Roadrunner), provide full Internet
access including instant messaging, e-mail, web, etc?

Yet, given AOL's continual growth, it is clear that they provide
added value services not found with other ISPs.

***

Enter Rep. Ed Markey.  Concerned about the monopolistic consequences
of AT&T's entry into cable, Markey writes (below) of the
significance of an agreement between AT&T and Mindspring --
to do something (unspecified) at some (unspecified) future date.

AT&T is clearly trying to have its cake and eat it too.  Aware
of the possibility that it may, soon, again, become a regulated
utility (deja the 1920's again) -- the agreement with Mindspring
is meant to diffuse the current criticism.

Not convinced that AT&T will, say, have a similar (and implemented)
agreement with -- say -- AOL -- Markey has "introduced a resolution
in Congress calling upon the Federal Communications Commission
to ensure open access for cable broadband consumers as a matter
of national policy."

But, the FCC (under Kennard) is politically in a very tenuous
position.  There have been many who question the need for the FCC
in a period of "full competition."

Can and will the Commissioners of the FCC hold back the mighty
force of the large players, to ensure true competition?  Or,
if this industry can, at the least, be an oligopoly -- what steps
can the FCC take to level the playing field.  The proviso in
the Reform Act that excludes the Baby Bells from providing long
distance until there was open access to the long distance
carriers was the clearest message on this role of the FCC.

Or, is the FCC in a "catch-22" position of trying to regulate
an "inevitable monopoly" under the guise of free competition as
called for in the 1996 Telecom Reform Act?  The framers of
the Reform Act expected cable to compete with AT&T -- not be
bought up by AT&T !

**********************************************************************
NOTICE: Contains copyrighted material, do not redistribute unless you
abide to the copyright notice appearing at the end of this article.

As provided for under Section 107 of the 1976 Copyright Law, the
following piece is being distributed for non-profit purposes and for
comment, criticism, and teaching.  In cases where the purpose of
conveying information is to fully inform the reader, an entire entry
or article is reproduced.  However, these extracts are typically a
very small percentage of the overall original work or publication.

Should you wish to convey this material, in the same spirit, you are
free to do so.
****************************Advertisement*****************************
Subscriptions to the Boston Globe are available at 617-929-2000 Boston
Globe archives are available for a fee at www.bostonglobe.com
****************************Advertisement*****************************

No chokeholds on the Internet

By Edward P. Markey, 1/7/2000

The recent announcement by AT&T Corp. that it would permit Mindspring,
an independent Internet service provider, to access consumers through
AT&T's cable broadband facilities is an important milestone in the
battle to safeguard consumer choice and an open Internet.

It may even be a ballot initiative in Massachusetts next year, so it
is not too early to begin discussing its importance. The result of the
so-called "open access" fight will help determine the prospects for
job growth, entrepreneurial opportunity, and innovation in the
Commonwealth's high-tech sector.

Massachusetts has much at stake in this debate. If AT&T, already the
largest cable operator in the nation, is permitted by the government
to consummate its purchase of MediaOne next year, AT&T would become
the state's largest cable provider, with more than 200 municipal
franchises.

At its core, the debate about open access is about the nature of the
new economy itself. It is not solely a cyberspace spat over whether or
not consumers can enjoy open high-speed Internet access over cable
systems using the Internet service provider, or ISP, of their choice.
It's yet another important contest between would-be (or
"recovering") monopolists and the government-designed policy
framework that has been established to promote a greater
democratization of technology and entrepreneurial opportunity.

In the short term, if Massachusetts consumers are denied open access,
they will be deprived the full benefits of competition in terms of
price, innovation, service quality, and choice. In the long run,
however, the effect of allowing the cable industry to become
"broadband barons" is far worse. In the new economy, it is critical
that Massachusetts consumers, companies, and entrepreneurs have the
platform for innovation and choice that open access to the Internet
over cable broadband can provide. Without such a platform, independent
companies will be at a competitive disadvantage. This battle is
critical as Massachusetts continues its transition from our bricks and
mortar past to our clicks and mortar future.

At the same time we must have an integrated regional plan for
education and job creation that embraces the new economy in our state.
The City of Malden, for instance, is in the process of tearing down
most schools and replacing them with state-of-the-art facilities. As a
result, teachers are excited, kids are engaged, and parents are
optimistic about their children's futures. Malden, whose public school
system is more than 40 percent minority, is making a critical and
timely socio-economic investment in its future. Nationally, it is
predicted that minorities will constitute a majority of the children
in the country by 2030.

Massachusetts needs to invest in its teachers and ensure that the
teachers get the training and high-tech skills necessary to integrate
digital tools effectively into course curriculums. All too many
students are denied opportunity because of the old classroom
structure. The Internet era brings openness and allows an expansion of
opportunity. The same is true for area entrepreneurs. Openness brings
a chance to innovate and create jobs. That is why it is critical for
the architecture of the Internet to remain open.

By indicating its intent to negotiate with other ISPs for access to
cable broadband consumers, AT&T deserves credit. It is a move toward
openness that no other cable operator has yet contemplated - namely,
giving consumers full acess to other ISPs rather than discriminating
in favor of cable industry-owned ISPs such as Excite@Home or
Roadrunner. Yet while representing progress, the recent
AT&T-Mindspring agreement falls short for both consumers and
competitors.

First, the "agreement" contains no terms, conditions, or prices for
Mindspring's access to consumers over cable broadband facilities. It
appears to be merely an agreement to agree to something later. Second,
despite stating its intent to work in principle toward multiple ISPs
for cable broadband consumers, AT&T announced that it would not
restructure its exclusive deal with Excite@Home until June 2002. This
is not exactly acting on "Internet time" and means that the
Mindspring "agreement" does not immediately create an exception to
the Excite@Home exclusivity on cable systems.

In addition, it is not clear whether other Internet service providers,
including BerkshireNet or Cape.Com in Massachusetts, could obtain the
same terms and conditions Mindspring receives from AT&T. The problem
remains that AT&T will determine who will gain access and how such
access is structured.

The rest of the cable industry is not taking even the limited
voluntary steps that AT&T is taking. Allowing the owner of the
broadband cable wire such a discriminating, bottleneck role is a
radical departure from the open architecture roots of the Internet and
threatens to undermine innovation and economic growth. In addition, it
contradicts our recently adopted moniker of "dot.commonwealth,"
which is meant to convey our common interest in an open,
entrepreneurial economy, and substitutes instead a
"dot.cablewealth."

At the national level I have introduced a resolution in Congress
calling upon the Federal Communications Commission to ensure open
access for cable broadband consumers as a matter of national policy.

At the regional level, efforts are underway to make open access an
issue for next November's ballot box. If neither the FCC nor the cable
industry takes additional steps, Massachusetts voters should safeguard
their competitive edge in the new economy and declare their strong
desire for the innovation, choice, and job growth promised by open
access by voting for the open-access ballot initiative.

Edward P. Markey is the ranking Democrat on the telecommunications
panel of the US House of Representatives.

This story ran on page A15 of the Boston Globe on 1/7/2000.  c
Copyright 2000 Globe Newspaper Company.
**********************************************************************
Copyright Notice:  This article is protected under copyright law. The
right to disseminate this articles is also protected under copyright
law.

The copyright law permits copying of materials for personal use under
the protection of fair use.

The copyright law also permits the copying of recent materials for the
"teachable moment." This allows copying for educational purposes.

Also, the courts generally interpret copyright protection by economic
criteria.  If the copying of a material reduces revenues to the
copyright holder, the court usually decides in favor of the plaintiff;
if the copying doesn't effect or increases the revenues, the court
usually decides on behalf of the defendent.

It is our judgment that occasional copying of a newspaper article does
not reduce revenues to the publisher and can actually create more
demand for a newspaper by attracting readership. An excerpt provides
free advertising for the publisher.

Thus, under fair use, teachable moment, and economic criteria we
selectively convey this copyrighted material to others.

*********

On October 27th, 1998, a new law called The Digital Millennium
Copyright Act was signed (Public Law 105-298).  A copy of the law is
available from the Government Printing Office at:

    http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi
    ?IPaddress=wais.access.gpo.gov&filename=publ304.105
    &directory=/diskb/wais/data/105_cong_public_laws

This law helps bring the U.S. into uniformity with the World
Intellectual Property Organization (WIPO) treaty.

While a lengthy law, it's main orientation is towards "stored
copyrighted materials" and supports the right for libraries and
archives to contain copyrighted materials for non-commercial purposes.
There is a procedure outlined by which a publisher may ask that
material be removed from an archive, but there are no liabilities on
the part of the archive site for the storage of copyrighted materials.
There is a requirement which every archive site should meet (including
the owners of list servers) to provide contact information to the U.S.
Copyright Office of a "designated agent" -- a person whom a copyright
holder can contact.

It is our opinion that it is extremely unlikely that a copyright
holder will ever contact an archive site's designated agent when
language, as we use, is provided to indicate the "fair use" aspect of
its dissemination and storage.

********************************************************************

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April 1994, Week 1
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March 1994, Week 1
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