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TESTIMONY ON MARYLAND ASSEMBLY SENATE BILL
505,
Internet Consumers' Bill of Rights
February, 2000
My name is Patricia Aufderheide and I live in Garrett Park, Md.,
which was incorporated in 1898 and which now has its own website.
I am a professor of communications at American University, and the
author of a book called Communications Policy and the Public Interest:
The Telecommunications Act of 1996 (Guilford Press, 2000, www.guilford.com).
I very much appreciate the opportunity to testify today, both as
a scholar and as a citizen of Maryland, and to include in the record
a recent article of mine elaborating on my remarks today.
To open, I would like to share with you a cartoon published in The
New Yorker magazine last week (March 6, p. 67). One petty mobster
is menacing another with the point of a knife tickling his nostril.
The menacing mobster says, "Know what we do with nosy little
creeps like you? We deprive them of their broadband data connections
to the rest of the world, that's what we do."
And it's a joke today, because people don't think their broadband
data connections are their lifeline. But increasingly, what we think
of as very different things--television, radio, our bank account,
our phone, our email and Web access--will be applications running
on a broadband platform. And the way that platform is designed will
be absolutely critical to the public health of a democratic information
society.
I would like to commend the legislature for its wisdom in proposing
to mandate open access in broadband, because it is an extremely
simple, clear, effective public health measure. It is a minimalist
regulatory approach that fosters economic vitality.
Why care that cable operators provide their broadband services on
the same terms for all users, not just their preferred users? First,
and I think most important, because it protects innovation, entrepreneurship
and creative growth. It permits the unforeseen, it allows the unimagined,
it encourages public life. It's not just about protecting today's
little-guy Internet Service Providers. In a larger sense, this means
guaranteeing that people can design any kind of service that can
be done or facilitated with broadband--distance learning, an all-animation
channel, a state assembly's open deliberations, e-shopping for groceries--without
getting the cable company's approval. It means keeping networked
communication open as a space that is open for all, entrepreneurs
and civic activitist alike, and not an enclosed electronic mall.
Up until now, the Internet has been an extraordinarily open and
commercially fertile environment. That is because the federal government
invested in research when the private phone company refused to develop
such a system—they said it would be like creating their own
competition--and because the designers prized its openness. (Hafner
& Lyon, 1996; Lessig, 1999) But nothing in its design guarantees
that it stays open, if Comcast or AT&T or AOL Time Warner or
anyone else decides to build systems that are closed and deny open
entry to networked communication. Closed access turns the cable
provider into a mega-ISP, a service that gives consumers only what
the cable company chooses for them and only lets its users send
the information that the cable company finds appropriate, at the
speed and time that the cable company decides. That is a service
that magnifies the problems we know all too well with cable today.
A lesson from history: Back in the early 1970s, cable companies
convinced regulators not to insist on open access. They promised
they would become common carriers once they had capitalized their
multichannel television businesses. (Aufderheide, 1992) Instead,
decades later cable companies still have a stranglehold on programming.
We, the viewers, get to watch whatever we want to, so long as they
put it on the menu. And from the producer side, it's equally limited:
Program providers have to make deals with cable companies before
they can even start to raise funding for programs. That's not what
we want or need from our Internet network. It stifles growth, creativity,
entrepreneurship before it begins.
Second, this approach is an efficient and elegant way to address
problems arising from market power and control of a critical service,
because it encourages competition and minimizes government interference.
Again, a lesson from history: Cable television taught us that it
is expensive, clumsy and laborious to regulate companies with market
power of this order. After a brief and failed experiment with price
deregulation, cable has been saddled with price regulation precisely
because consumers are deprived of choice.
I know that cable companies say the marketplace is the best place
to get competition, and I couldn't agree more. That's why I think
legislating open access is critical, to keep incumbent cable companies
from stomping incipient competition. In Eugene, Oregon, the Council
required open access, and as a result has seen a small rush on that
small city by competitive broadband providers, who trust that government
will protect competition.
I also know the cable companies say they already have competitors
for broadband service, so even if they limit competition within
their sphere, there still will be competition. We've heard this
before, too. In the 1980s, they claimed that because viewers had
VCRs and broadcast TV, there already was competition in the television
market and they didn't need to be price-regulated. That was the
failed experiment I referred to, and what made it fail was massive,
nation-wide consumer outrage.
They want to try the same argument now. They say that because some
people have access to some kinds of other services, that's competition.
And if you're a downtown business, that might be true. But for most
residential users, the phone companies' DSL is not available. Wireless
is barely out of the beta stage. Most citizens of Maryland will
get their first chance at highspeed access from the cable company.
And as we know from economic research on path dependence and from
communications history, those first choices are decisive in establishing
the evolution of technologies.
Third, I think this legislative approach is healthy because it creates
common standards throughout the state at a time when this is very
contentious at the local level. Local jurisdictions are facing this
issue whenever cable franchise are renewed, and every renewal has
this issue up front and center. This legislation is a critically
important piece of assistance to localities, minimizing expensive,
unproductive wrangling.
But are you asking cable companies to do something they physically
can't do? Well, AOL and Time Warner seem to think it's entirely
possible. They have just assured us all in a public Memorandum of
Understanding that they intend to offer a service that is open to
all competing ISPs, and that sends and transmits user data without
discrimination. So we know they think they can.
Then do we still need legislation? I'm afraid so. Before AOL wanted
to merge, it was the loudest corporate supporter of government protection
for open access. It now says that all open access solutions should
be purely corporate. I don't think citizens or consumers should
be trying to start businesses, share ideas or learn in the middle
of corporate mudfights.
Mandating open access extends the terms of today's Internet into
the broadband era. It sends a clear, good signal to systems designers
at the right moment, at the launch of service, that Maryland citizens
deserve broadband service, not Big Brother in a pipe.
Thank you.
References
Aufderheide, Patricia. (1999). Communications
Policy and the Public Interest: The Telecommunications Act of 1996.
New York: Guilford Press.
Aufderheide, Patricia. (1992, Winter). "Cable Television and
the Public Interest," Journal of Communication 42:1, 52-65.
Hafner, Katie, & Lyon, Matthew. (1996). Where Wizards Stay Up
Late: The Origins of the Internet. New York: Simon and Schuster.
Lessig, Lawrence. (1999). Code and Other Laws of Cyberspace. New
York: Basic Books.
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