TCS Daily

Florida Court Finds Open Access Damages Free Speech

By Jason Thomas - November 20, 2000 12:00 AM

The nation's eyes have turned to the Sunshine state. A ruling handed down Nov. 10 by a U.S. District Court in Florida will have long-term implications for the development of the new economy.

This story, though, has nothing to do with the contested presidential election. Instead, the court's ruling overturned a Broward county ordinance that mandated "open access" to cable lines owned by AT&T.

Mandated "open access," or forced access as it might more accurately be called, would require cable system owners to provide equal access to each and every Internet provider that wants to serve the cable system's customers.

The district court invalidated the ordinance on an unusual ground -- as an abridgement of free speech.

This decision - issued on the Veterans' Day holiday because Broward poll workers were recounting ballots -- marks the third consecutive legal setback for proponents of forced access in five months. The language of this decision, though, was the most forceful yet.

"Compelled access like that ordered by the Broward County ordinance both penalizes expression and forces the cable operators to alter their content to conform to an agenda they do not set," U.S. District Judge Donald M. Middlebrooks wrote.

In finding that forced access would violate cable companies' constitutional rights to free speech, the decision caught many observers by surprise. A paper released Aug. 29 by University of Georgia Professor William E. Lee spoke of "the conflict between the 1st Amendment and mandatory open access," but most commentators continued to regard high-speed Internet access as something that could be regulated like plain old phone and other communications services. Most of them concerned themselves with how telecommunications services could be classified and how their transport and content could be bundled and unbundled so it could be sold separately to all comers.

Judge Middlebrooks' decision may change the debate. His thoughtful analysis will oblige regulators and policy analysts to scrutinize both cable and the Internet's true nature, instead of relying on facile comparisons to older media.

For example, proponents of mandated access have long argued that transport (connection to the Internet via wires) and content (information and entertainment) are separate components of the cable modem service package. In short, the wire that delivers Internet access to the consumers can somehow be separated from the Internet access package itself.

But Judge Middlebrooks found: "In arguing that the conduit or transmission capability of speech (the wire) can be separated from its content (the access package), the county ignores the relationship between the two. ... Content and technology are intertwined in ways which make analytical separability difficult and perhaps unwise."

The artificial separation of the cable line from content advanced by supporters of forced access is the only way they can make sense of their proposed regulation. Forced access is only fair if competing Internet Service Providers (ISPs) in being allowed to directly provide consumers with their content can somehow be charged a fee to cover the cable system's owner cost of providing access to the network. Indeed, forced access advocates concede that some payment must be made to cable companies for access to their proprietary network.

But what happens on a shared access system, such as cable, in which the flow of content from ISPs can disrupt the cable companies other video and voice content? Are cable companies to be denied the ability to provide their own proprietary content and e-mail addresses? Then the price charged consumers could only be the price of transport as that is all the cable company could offer.

Such a separation would be both unreasonable and detrimental to consumers, especially since ISPs offer little in terms of actual content to customers.

Indeed, the "content" provided by most ISPs is nothing more than a standard browser and a portal with hyperlinks and e-commerce options. More sophisticated customers rarely use them.

And providing an e-mail address, while of great value to a customer, is of little cost to the ISP. The cable provider with its video and other content is doing much more, at a much higher cost as the cable firm must install and maintain cable lines to deliver a variety of content.

Forced access advocates should be dispirited by their court failures; not only because of the legal setbacks, but because each case has pulled off another layer of the forced access onion.

It is becoming clear that technical ignorance, and the old-telecom idiom, "bundling," will no longer buttress their arguments. Close analysis, like that of Judge Middlebrooks, reveals that the rationale for forced access is contrived, and borne out of political calculation. It is far less expensive for a competing ISP to litigate and lobby regulators than it is to construct a network of its own; hence the campaign for forced access.

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