Open Access, Closed Debate

Years ago — back when dial-up access was growing and broadband was only a vague notion, Jeff Chester of the Center for Digital Democracy, a lobbying group for open access with online providers, never missed an opportunity to complain about something he called “walled gardens.”

According to Chester, the day was coming when an Internet service provider (ISP) would determine what portions of the Internet a subscriber could access and what devices could be connected to the ISP’s service. Hence, he argued, the ISPs would be providing a walled garden of content.

Chester’s predictions were widely dismissed at the time. After all, in the dial-up world, where access to the Internet is delivered over heavily regulated telephone lines, common carrier rules mandate open access to all of the Internet in a fair and non-discriminatory fashion.

What could be all that different in a broadband world? Plenty, as it turns out.

First, the FCC ruled that cable companies providing broadband are “information services” not subject to the rules obligating the Baby Bells to provide open access to the Internet. In effect, because they built their systems out of their own pockets, cable companies can decide what, when and how much of the Internet they will provide customers.

When the Supreme Court affirmed the FCC’s decision, the agency rushed to rule that the Baby Bells’ DSL broadband was also an information service in order to put DSL on the same competitive footing as cable modems in hopes of lowering broadband prices.

Just like that, Chester’s once derided notion of walled gardens is a reality, although it has morphed into a debate over “open access” or “net neutrality.”

As the advocacy group Public Knowledge puts it: “Network operators have the right to manipulate traffic with the goal of steering consumers to certain Web sites over others. Network operators have the right to operate their own VoIP &bpsp;services, while blocking unaffiliated VoIP traffic.”

Or, as Chester’s own group puts it: “An Internet without open access requirements would hardly resemble the Internet as we know it today. Without such requirements, the power to discriminate would be given to those who control the conduit–the few gigantic service providers that will remain.”

This would be the Baby Bells and the cable giants, who are planning a concerted effort next year to make sure Congress sees it their way. From their point of view, the whole net neutrality debate is a solution in search of a problem that doesn’t exist.

It would be competitive suicide, they argue, to not make the entire Internet available to customers. Yet, a telephone company has already been caught blocking a rival VoIP provider. Cellular providers are resisting carrying VoIP traffic while developing their own VoIP product. The gaming industry complains it is having difficulty getting network operators’ approval to attach devices to their networks.

Congress says it is aware of the problem and will address it in pending telecom reform legislation, but the House of Representatives’ first draft effort brought a rebuke from Internet icons Amazon, eBay and Google.

“We are concerned that the staff discussion draft now before the [House Energy and Commerce] Committee, although it contains a section on network neutrality, does not achieve the necessary goals,” the letter states. “Instead, it fundamentally changes the Internet because it fails to adequately protect consumers’ ability to use their broadband connection to reach the content and services they want.”

Let’s see, Congress favoring the Verizons and Comcasts of the world over consumer interests? Gee, what are the odds?

Unfortunately, that seems exactly where Congress is headed.

Roy Mark is Washington, D.C., senior editor for

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