The nation’s eyes have turned to the Sunshine state. A ruling handed down Friday by a U.S. District Court in Florida will have long-term implications for the development of the new economy. However, this story has nothing to do with the contested presidential election. Instead, the court’s ruling overturned a Broward county ordinance that mandated “open access” to cable lines owned by AT&T. Mandated “open access,” or forced access as it can more accurately be called, would require owners of cable systems to provide equal and nondiscriminatory access to each and every Internet provider that wishes to serve the cable system’s customers.
The district court invalidated the ordinance as an abridgement of free speech. Although most state and federal offices were closed on Friday for Veterans’ Day, Broward county officials and magistrates were working because of the Florida presidential ballot recount.
It is far less expensive for a competing ISP to litigate and lobby regulators than it is to construct a network of its own; hence the campaign for forced access.
This decision marks the third consecutive setback for proponents of mandated access in the past five months. Of the three, the language used in the Florida decision was clearly the most forceful. In short, U.S. District Judge Donald M. Middlebrooks ruled that mandated cable access would grant government the unconstitutional authority to determine what speech cable companies must carry. “Compelled access like that ordered by the Broward County ordinance both penalizes expression and forces the cable operators to alter their content to conform to an agenda they do not set,” the decision read.
The 1st Amendment rationale caught many observers by surprise. Even the GAO report, “Technological and Regulatory Factors Affecting Consumer Choice of Internet Providers,” intended to be the definitive guide to the “open access” debate, failed to reference 1st Amendment considerations. A paper released August 29th by University of Georgia Professor William E. Lee spoke of “the conflict between the 1st Amendment and mandatory open access,” but most commentators continued to regard high-speed Internet access in the context of old-paradigm communications services.
The questions asked by these commentators concerned telecom “classification” and the “bundling” of transport and content. Judge Middlebrooks’ decision may mark a change in the debate. His thoughtful analysis will oblige regulators and policy analysts to scrutinize the Internet’s true nature, instead of relying on facile comparisons to older media.
For example, proponents of mandated access have long argued that transport (connection to the Internet via wires) and content (information and entertainment) are separate components of the cable modem service package. Because of this artificial separation, forced access regulation would allow competing Internet Service Providers (ISPs) to directly provide consumers with their content, but still require them to pay the cable system’s owner a fee for access to the network. But is this distinction valid, or evident under empirical analysis?
Judge Middlebrooks thinks not. “In arguing that the conduit or transmission capability of speech can be separated from its content, the county ignores the relationship between the two,” he wrote in his decision. “In short, content and technology are intertwined in ways which make analytical separability difficult and perhaps unwise.”
If forced access advocates concede that some payment must be made to cable companies for access to their proprietary network, would their entire argument become void if cable companies decided not to provide any proprietary content or e-mail addresses? Under such a scenario, the price charged to consumers must be the price of transport, since that is all that would be provided.
But such a separation would be both unreasonable and detrimental to consumers. The “content” provided by most ISPs is nothing more than a standard browser and a portal with hyperlinks and e-commerce options. Both the software and portal are optional and rarely used by more sophisticated customers. To provide a customer with an e-mail address is of little cost to the ISP, but of great value to consumers; most tend to prefer a “home” e-mail client instead of web-based e-mail. In both instances the “content” in question is a logical service to provide customers. Also, in both instances the cost to provide the “content” is negligible, while the consumer benefit may be great.
Forced access advocates should be dispirited by their court failures; not only because of the legal setbacks, but because each case has pulled off another layer of the forced access onion. It is becoming clear that technical ignorance and the old-telecom paradigm of “bundling” will no longer buttress their arguments. Close analysis, like that of Judge Middlebrooks, reveals the rationale for forced access to be contrived and borne out of political calculation. It is far less expensive for a competing ISP to litigate and lobby regulators than it is to construct a network of its own; hence the campaign for forced access.
Thanks to the Florida decision, defenders of proprietary cable networks can now add “unconstitutional” to “economically calamitous” and “technically infeasible” on the long list of reasons why forced access would harm consumers and restrict the growth of the burgeoning Internet economy.