Powell, Martin Signal No Forced Access

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At least two Republican Federal Communications Commission members have issued strong hints that cable operators have nothing to fear in the way of Internet-access mandates.

Two weeks ago, FCC chairman Michael Powell and commissioner Kevin Martin spoke out on the issue, sending strong signals that forced access for Internet-service providers was bad policy.

In a speech here on Oct. 26, Martin also urged that the agency complete action on the cable-access proceeding promptly, in order to provide regulatory certainty to the cable industry and other affected industries.

"We ought to complete the cable open-access proceeding," Martin told the National Forum on Broadband Deployment, a group Powell had addressed a day earlier. "Personally, I would be very cautious about applying that type of legacy regulatory regime to a new and innovative service."

In his remarks, Powell voiced probably his strongest opinions to date against forcing cable operators to open their Internet networks under rules that apply to telephone companies.

"When someone advocates regulatory regimes for broadband that look like, smell like, feel like common carriage, scream at them!" Powell said. "They will almost always suggest that it is just a 'light touch.'

"Demand to see the size of the hand that is going to lay its finger on the market. Insist on knowing where it all stops. Require that they explain who gets to make the key decisions — if it is enlightened regulators, rather than consumers and producers, walk out of the meeting."

Powell's choice of words was interesting in that when then-America Online Inc. chairman and CEO Steve Case wanted Congress or the FCC to force cable operators to carry unaffiliated Internet-service providers, Case called his open-access proposal a "light touch."

Only one cable company in the U.S. is required to carry multiple ISPs: AOL Time Warner Inc. The Federal Trade Commission imposed the access mandate for five years as a condition of the America Online-Time Warner Inc. merger last December.

Powell and Martin are both Republicans who favor market-oriented solutions, coupled with tough enforcement measures, to spur innovation and growth in media and telecommunications markets. The FCC's third Republican, Kathleen Abernathy, said in a speech in Chicago on Oct. 24 that unless Congress instructed otherwise, market forces should prevail over regulation.

"Markets are the most effective way of delivering quality services to the American people at the lowest costs," Abernathy said. "And equally important, they also punish and reward faster than a regulator could even dream of."

Center for Digital Democracy executive director Jeff Chester, an open-access advocate, blasted Powell for questioning the benefits of requiring cable to provide non-discriminatory access to competing ISPs.

"Mike Powell is going to go down in history books as one who helped to turn the Internet into a glorified 500-channel cable system, undermining its openness and competitiveness," Chester said.

The FCC launched the cable access proceeding under former Democratic chairman William Kennard in September 2000 as a notice of inquiry — a procedural step short of a notice of proposed rulemaking.

Kennard opened the docket partly in response to conflicting court decisions on whether cable-modem service is a cable service, an information service or a telecommunications service, each of which has different regulatory requirements.

The cable-access proceeding is under review at the FCC's Cable Services Bureau. Several months ago, bureau chief W. Kenneth Feree said the open-access issue was a priority, but didn't say when his bureau or the agency would complete its work.

FCC classification of data-over-cable service could determine whether cable operators have to pay franchise fees on data-generated revenue or make contributions to the universal service fund designed to keep local phone rates affordable for all Americans.

In his speech, Martin said broadband deployment has been hindered at the state and local level. He urged those governments to consider easing up franchise fees and taxes on broadband providers.

"To truly help spur broadband deployment, every level of government should be committed to minimizing and eliminating these excess financial burdens," Martin said.

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