IP: MAP Letter To Ch. Kennard on AT&T-Mindspring Announcement

[Dave Farber <farber () cis upenn edu>]

> From: Harold Feld <hfeld () MEDIAACCESS ORG>
> Subject:      MAP Letter To Ch. Kennard on AT&T-Mindspring Announcement
> To: CYBERTELECOM-L () LISTSERV AOL COM
>
> A copy of this letter is available at MAP's website,
> http://www.mediaaccess.org
>
> Harold Feld
> Associate Director
> MAP
>
> December 6, 1999
>
> Chairman William E. Kennard
> Federal Communications Commission
> Washington, DC 20554
>
> Dear Mr. Chairman:
>
>  Several months ago, you asked me to meet with representatives of AT&T,
> > Excite@Home, MindSpring, Atlanta Mayor Campbell and the FCC's Local and State
> Government Advisory Committee with the goal of reaching agreement on a
> definition of "open access" in the cable broadband environment.  I am 
> among the
> three of these six people you called upon who have chosen not to sign the 
> letter
> being sent to you today.
>
>  In dozens of hours of conversation over the last four months, I tried to 
> work
> constructively towards that objective.  So did the others.  The 
> discussions were
> candid and sincere.  I believe the participants acted in good faith at all
> times.
>
>  It is with regret that I advise you that what AT&T describes in the letter
> being sent to you today by three of the six members of the group IS NOT "Open
> Access."
>
>  Even so, I promised you that I would try to be flexible, and I had remained
> willing to endorse AT&T's "voluntary" undertaking as an important step in the
> right direction.
>
>  However, a few weeks ago, I reluctantly concluded that I could not sign the
> letter I had helped to draft, even if I had also presented a separate 
> statement
> of my own views.  Here is why:
>
>    AT&T was unwilling to discuss, much less consider, several criteria 
> which are
> essential to insuring that cable operators will not abuse their monopoly
> position to favor certain content and certain business partners.  This 
> inhibits
> the Internet's current role as a renewable source of constant innovation,
> economic growth and free expression.
>
>    With the unexplained withdrawal of >    With the unexplained withdrawal of Excite@Home from the discussions, there
> was no longer any assurance that >was no longer any assurance that Excite@Home would cooperate in the 
> planning and
> implementation of AT&T's commitments, or in preparing for broader access 
> in the
> "post exclusivity" period.
>
>    Widespread mischaracterization of the recent FCC staff report on broadband
> access, including misleading statements by a high level Commission 
> official at a
> public meeting I attended three weeks ago, led me to realize that the letter
> could be misused to make it seem that AT&T has in fact agreed to provide "open
> access."
>
>  Nonetheless, there are important breakthroughs in the letter.  AT&T's
> willingness to make its systems more available to competitors is a significant
> breakthrough.  While I do not doubt the sincerity of those making these
> "voluntary" promises, the simple fact is that the high turnover of top 
> officials
> at AT&T requires that you obtain binding commitments.  Accordingly, I ask that
> you make AT&T's compliance with these undertakings a condition of any transfer
> of ownership MediaOne cable systems to AT&T.
>
>  I have been inundated with queries since self-serving versions of the letter
> were leaked to the press.  Thus, I will use this letter as a vehicle to
> summarize my concerns.  I ask that you place this letter, along with all
> correspondence you receive from other of the participants, in html format 
> on the
> Commission's Broadband Internet Access webpage: http://www.fcc.gov/broadband/
> I will also post this letter on Media Access Project's website:
> http://www.mediaaccess.org
> Interested citizens - and Commission staff - can learn more about my views on
> the subject via links to the compendium of broadband materials contained at:
> http://www.nogatekeepers.org
>
>  I would stress that I have not seen the final version of the AT&T 
> undertakings,
> as I withdrew from the talks two weeks ago.  Based on my knowledge of the
> drafting, as well as leaks which reporters have received from what they 
> describe
> as knowledgeable parties, these are my comments:
>
>  1. Although AT&T owns 58% voting control of >  1. Although AT&T owns 58% voting control of Excite@Home, it is hiding 
> behind an
> "exclusive contract" to delay introduction of broader access for up to two 
> and a
> half years, and perhaps much longer.
>
>  AT&T says it will not open its systems until it is freed of existing
> contractual commitments.  In the case of >contractual commitments.  In the case of Excite@Home, this could be at 
> least two
> and a half years.  AT&T has been unwilling to disclose when MediaOne's
> exclusivity with the RoadRunner ISP will expire; some of these agreements
> evidently run much longer than the >evidently run much longer than the Excite@Home contracts.
>
>  These contracts are in my opinion, unlawful.  That aside, AT&T controls the
> voting stock in >voting stock in Excite@Home and appears to be acquiring 50% operating 
> control of
> RoadRunner.  It can provide access much more quickly.  The failure to do so
> means that AT&T will be able to retain a stranglehold on the prime internet
> access customers for many years to come.
>
>  To call this open access is like saying that on January 1, 1984, the day 
> AT&T
> divested the local phone companies, there was competition in long distance
> services.  The Commission should not allow a new monopoly to be created as it
> "watchfully" waits for competition.
>
>  2. Open access requires more than a choice of ISP's.
>
>  Open access requires that cable operators provide competing ISP's with full
> access to their systems under the same terms and conditions, and at the same
> rates, that access is available to affiliated ISP's.  An operator should 
> not be
> able to restrict offerings to those which its affiliate chooses to provide.
>
>  The characteristics and benefits of open access are described in Keeping the
> Information Superhighway Open for the 21st Century, a paper to be released 
> today
> by the Consumer Federation of America:
> http://www.consumerfed.org/internetaccess/keeping1299.htm
>
> 3. Requiring ISP's to use AT&T transport facilities permits content-based
> discrimination in favor of preferred content providers and commercial 
> partners,
> and threatens to undermine the most valuable characteristics of the Internet:
> low entry barriers for nascent entrepreneurs, free expression and 
> serendipitous
> innovation.
>
>  Throughout the discussions I attended, AT&T was unwilling to agree to 
> let ISP's
> have access to connections at the cable head end.  It instead insisted that
> ISP's use AT&T transport facilities all the way to the Internet backbone.  The
> absence of an affirmative statement that ISP's can connect at the head end is
> profoundly anti-competitive, and utterly at odds with what the Commission
> expects of all other telecommunications services.  It particularly penalizes
> ISP's which own, or have long-term leases for, transport facilities, and which
> may have built their own regional nodes.
>
>  Professors Lawrence Lessig (Harvard Law School) and Mark Lemley 
> (University of
> Texas Law School) have described how the closed cable television model is
> antithetical to the core characteristics of the Internet as we know it 
> today in
> comments recently filed in the AT&T/MediaOne merger proceeding:
> http://cyber.law.harvard.edu/works/lessig/MB.html
>
>  Professor Jerome Saltzer of MIT has described five kinds of content 
> control in
> his newly-published paper
> http://web.mit.edu/Saltzer/www/publications/openaccess.html
>
>  Free expression includes the right not to receive access to unwanted 
> material.
> Your strong support for the television v-chip ought to impel you to 
> examine how
> closed access does not permit parents to use effective "server side" filtering
> by subscribing to "family friendly" ISP's.  This problem is discussed in the
> brief Media Access Project co-authored in the Ninth Circuit Portland case:
> http://www.mediaaccess.org/filings/index.html#anchor44776
>
>  3. AT&T has abandoned its claims that it is not technologically feasible for
> cable operators to provide access to multiple ISP's.
>
>  Even as technologists at the highest levels of AT&T and >  Even as technologists at the highest levels of AT&T and 
> Excite@Home were
> representing to me that there is no technological impediment to providing
> citizens with access to multiple ISP's, their lobbyists have continued to 
> argue
> the contrary position before numerous state and local legislative and 
> regulatory
> bodies.  Indeed, a significant factor in my decision to withdraw from the 
> talks
> you asked me to attend was the claim contained in an October 15, 1999 
> article by
> > Excite@Home's General Counsel that "The technology simply does not yet 
> exist to
> allow multiple ISPs to share a coaxial cable on a commercial basis."
>
>  Since AT&T says it can provide this access for >  Since AT&T says it can provide this access for Excite@Home 
> customers on AT&T
> cable systems and RoadRunner customers on MediaOne cable systems, all the 
> other
> > Excite@Home and RoadRunner partners should be able to do so as well.
>
>  4. Open Access brings a better financial return for cable operators.
>
>  Competitive ISP's will generate more revenue for cable operators.  They can
> market to, and provide better customer service for, citizens who might 
> otherwise
> be left on the wrong side of the digital divide.  For example, Cuban-Americans
> have different needs than Mexican-Americans and citizens of  Puerto Rico.
> Cultural impediments may mean that a single ISP with one Spanish language
> marketing staff will miss many of these new customers, leaving others outside
> the digital environment.
>
>  A thoughtful and important discussion of the how open access is more 
> profitable
> for cable operators and for the economy as a whole is contained in a
> newly-released paper by Professor Jeffrey McKie-Mason of the University of
> Michigan, at http://www.opennetcoalition.org/press/jmmwhi.pdf
>
>  5. AT&T has been unwilling to make a written commitment that customers can
> purchase Internet access at commercially reasonable rates without having 
> to buy
> a bundled "package."
>
>  Failure to permit independent purchase of Internet services threatens to 
> expand
> the digital divide.
>
>  My Request: Open-Minded and Objective Reevaluation of Voluntary Access Plans
>
>  In accepting your request to meet with AT&T and others, I placed at risk my
> relationships with my clients and my professional colleagues.  I have had
> several very emotional conversations in the two days since word of my
> involvement was leaked to the press, and one client has directly accused 
> me of a
> breach of trust.
>
>  I knew this would be difficult, but I was willing to take the risk.  I 
> am proud
> that I tried to advance the public's agenda, and I am confident that I will be
> able to convince my colleagues that I did the right thing.
>
>  This experience impels me to make a request of you.  I ask that you 
> undertake a
> candid and zero-based review of what AT&T and, more importantly, other cable
> operators and their trade associations, say about open access in the days and
> weeks to come.  This may require you to do something I know does not 
> always come
> easily to you - to change your mind.
>
>  Depending on what you find, I ask you to reevaluate your unwillingness 
> to use
> the Commission's legal authority to require non-discrimination in providing
> broadband cable internet services.  For example, if one or more of the major
> cable operators remain unwilling to agree that affording access to multiple
> ISP's at the cable head end is not technologically feasible, or that they are
> unwilling to make binding commitments not to abuse caching and other 
> quality of
> service standards to favor certain content at the expense of free 
> expression and
> economic growth, you need to ask yourself if marketplace forces alone can
> influence those monopoly cable operators to follow a different course.
>
>  I will do the same thing.  I will approach my own inquiry as 
> open-mindedly as I
> can.  I know you will, too.
>
>         Sincerely,
>
>
>
>         Andrew Jay Schwartzman
>         President and CEO
>
>         Media Access Project
>         Suite 220
>         950 18th Street, NW
>         Washington, DC 20006
>         (202) 454-5681