Wednesday, November 18, 2009 - The Progress & Freedom Foundation Blog

Reviving Open Access

The Wall Street Journal reports that "FCC staff also are studying whether to revive 'open access' rules, which would require Internet providers to lease their networks to rivals at government-regulated prices." "Revive" is an interesting choice of words, as it implies that such rules were once alive, but are presently dead, or at least comatose. But in the case of cable Internet service providers, it is simply wrong. Cable modem service, a term the FCC invented for high-speed Internet over cable service, has never been subjected by the FCC to "open access" or, more precisely, common carrier regulation. Not once; not ever.

Scott Cleland wrote a nice little piece on the tendency of net neutrality advocates to re-write Internet history so that the steady movement away from government ownership and control, including economic regulation, during the Clinton Administration is air-brushed out of history. My point is less global, but no less important. The terms, conditions and prices of cable modem service at both the retail and wholesale level have never been subject to regulation.

Instead, the FCC made the conscious decision to classify the service not as a highly regulated common carrier telecommunications service, but rather as a then-unregulated "information service." This decision was made for the purpose of encouraging broadband deployment and permitting such Internet services to be provided in a minimally-regulated environment, and it was upheld by the U.S. Supreme Court in the Brand X case. And, yes, the FCC launched a companion rule-making to consider whether to impose any special requirements on this information service pursuant to its Title I "ancillary jurisdiction. But it has never acted on that proposal. Thus, there is no rate-regulated leasing of cable modem lines for regulators to revive.

But I digress. The real story is that the FCC, for the first time, is seriously considering imposing common carrier-like economic regulation on cable Internet providers, in the context of its charge from Congress to develop a "National Broadband Plan" to increase broadband deployment. Setting that irony aside for the moment, we can, and will, debate the merits and drawbacks of the open access issue for some time to come (and rest assured, it will feel like Groundhog Day for many of us). But let's not start the debate from the false premise that we are just returning to the good old days of yore.

posted by Barbara Esbin @ 5:36 PM | Cable , Net Neutrality , Neutrality , The FCC