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Scholars to FCC: Back Open Access

11/21/1999 7:00 PM Eastern

Washington -- Two legal scholars are urging the Federal
Communications Commission to use AT&T Corp.'s merger with MediaOne Group Inc. to
ensure that the architecture of the Internet remains open.

Law professors Lawrence Lessig of Harvard University and
Mark Lemley of the University of Texas told the FCC that AT&T's decision to marry
content with high-speed transport "threatens to compromise" the Internet's open
architecture, which has led to such explosive commercial growth and innovation.

"The FCC's presumption should be against approving
mergers that threaten these design principles without a clear showing that the threat
would not undermine the Internet's innovation. No such showing has been made in this
case," Lessig and Lemley wrote in a 39-page submission.

FCC policy to date of letting market forces work
"under the banner of 'no regulation,'" they added, "threatens to permit
this network to calcify as earlier telecommunications networks did. Further, and
ironically, the FCC's supposed 'hands-off' approach will ultimately lead to more, rather
than less, regulation."

Lessig and Lemley said they were not filing the comments on
behalf of any interested party. However, Lessig said, he attended a Department of Justice
meeting on the AT&T-MediaOne merger at the request of GTE Corp. and Bell Atlantic
Corp., along with another DOJ meeting with "some in the Internet community to discuss
broadband cable access."

In their paper, Lessig and Lemley said they view high-speed
access as a separate product market -- something the cable industry rejects. And the FCC
has not said whether it agrees that it is wise at this time to separate the narrowband and
broadband markets.

The professors said the FCC could mandate open access
without getting bogged down in phone-company interconnection rules. And they said Internet
open access is working well over the phone network.

"How it is possible that there is no concept of 'open
access' in the context of cable, but a concept of open access in the context of DSL
[digital subscriber line], frankly baffles us," they added.

Meanwhile, a Consumer Federation of America official
predicted last week that cable will lose the Internet-access debate when franchise
agreements come up for renewal.

CFA research director Mark Cooper told the Virginia
Citizens Consumer Council in Richmond, Va., that the law goes easier on cities when they
use renewals to force cable operators to provide third-party access to Internet
facilities.

"Open access will be much easier to win during the
franchise-renewal process because legal questions about the right to demand it as a
condition of the franchise will be gone," according to Cooper.

Cooper's analysis was not consistent with the cable
industry's understanding of cities' rights during renewals. Cable-industry lawyers have
said federal cable law prevents the imposition of open-access requirements whether in the
context of a transfer or a renewal.

 

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