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Thursday, July 7, 2005

Openness Post-Brand X: It begins . . .
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The release this week of Public Knowledge's "Principles for an Open Broadband Future" is important in at least two respects, even for those of us who disagree with some of the white paper's arguments and conclusions. First, the paper underscores that, in the wake of the FCC's Supreme Court victory in Brand X, Capitol Hill is the new battlefield for advocates of Internet openness. Second, it underscores (for the most part, anyway) how much the openness debate has evolved since the FCC began its effort to promote broadband investment and innovation by declining to saddle these services with onerous regulation.

The paper expresses clear disappointment that the Supreme Court rebuffed the campaign, begun at the local franchise level, to force cable modem and potentially other builders of broadband networks to allow their rivals to "free ride" on those networks, i.e., to provide ISP "open access." And given Chairman Martin's stalwart support for minimizing broadband regulation, the paper acknowledges that Congress provides the most likely forum in which to pursue broadband regulation.

Yet, at least in its rhetoric, the paper does not go out of its way to parrot pleas for ISP "open access," at least as that siren song was defined when the FCC first blocked its ears to it during the Clinton Administration. The paper's calls for broadband competition and for access by information service providers could be read to encompass open access, but it is significant that the paper gives that term little, if any, prominence. Indeed, the paper reads as more of a justification for "network neutrality" -- another problematic goal for government mandates, but one that falls short of the near-physical interconnection with multiple ISPs that early "open access" mandates would have imposed. Moreover, the paper expresses the very concern that prompted the FCC to shun mandating open access, namely, the fear that such mandates might discourage companies from building the competing pipes almost everyone wants consumers to enjoy.

The openness debate, thankfully, appears to have moved on. The debate continues to acknowledge that the Internet's power to transform our economy and our society lies in consumers having more and more technology, along with the freedom to use it. But now both sides of the debate concede, at least to some extent, that there may be significant downsides to mandating that result, particularly in the early statges of competitive broadband deployment.

None of this suggests the white paper released this week went far enough in relegating openness mandates to any future situations in which government (in my view) must remedy demonstrable abuse of market power. To the extent the paper reflects a more refined position among some openness advocates, however, there is hope that parties helping Congress balance conflicting goals in this area will be arguing with each other, rather than talking past each other.

posted by Kyle Dixon @ 2:18 PM | Broadband , Cable , Capitol Hill , Communications , Innovation , Internet , Net Neutrality , Supreme Court

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