Internet Service Providers (ISPs) offer their subscribers both proprietary content and Internet access. As Alec Klein’s October 10th article describes, proprietary content is often acquired through exclusive contracts that deter hyperlinks to, and the promotion of, competitive content and shopping. This practice is used to secure more advertising revenue, as consumers are encouraged to remain within the subscriber-only network.
However, this practice does nothing to restrict content because unfettered Internet access is also part of the package. If the desired content, software, or shopping exists beyond a proprietary network, the consumer need only enter the appropriate web address to access it. The content provided by the ISP is just an additional service that has little bearing on what is available to consumers.
This distinction dispels the notion advanced by AOL’s antagonists that contracts used to secure content actually “restrict access to rivals.” At worst, AOL’s practices restrict the promotion of rival content inside its own network. The ISP’s dual-role is obfuscated to make a practice similar to network television advertising for upcoming shows seem restrictive and sinister. Consumers do not mind when CBS fails to promote NBC programs nor do they mind when the Washington Post fails to promote a cross-town rival. The same standard should apply online.
Jason M. Thomas
Regulatory and Technology Policy Analyst