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ACLU joins access fight

The American Civil Liberties Union is hoping to use its free-speech credential to boost the fortunes of those trying to force companies to carry competing Internet providers on their broadband networks.

The ACLU, which first announced its support for cable-modem access rules last month, joins and the National Association of Broadcasters as new campaigners for access. "This may be the key First Amendment issue for the 21st century," said Barry Steinhardt, ACLU associate director.

ACLU officials, along with longtime open-access supporters, last week met separately with FCC Chairman Michael Powell and Sens. Fritz Hollings (D-S.C.) and Patrick Leahy (D-Vt.) to present them a technical report describing several types of open- and closed-access cable broadband architectures.

The access advocates argue that, without "true" open-access rules, cable companies will block companies from providing feature-length movies and other products that compete directly with cable's core television business or with marketing deals that cable operators strike with retailers. "It is particularly important to preserve the Internet as an open medium given the amount of media consolidation going on," said Jeffrey Chester, president of the Center for Digital Democracy.

Current multiple ISP plans offered by cable generally do not allow rival ISPs to offer novel services and carry such a high wholesale price that the carried providers have a hard time making a profit, they said.

Open-access supporters are also keeping the issue alive in court.

The federal appeals court in San Francisco will hear CDD and Media Access Project's appeal of the March 14 FCC ruling that Internet access via cable modems is an "information service" not necessarily bound by open-access rules. They say cable-modem service should be classified as a "telecommunications service" like phone service.

The FCC has long resisted calls for open-access rules, arguing they could stunt the growth of the cable-modem business.

But the FCC is set to establish a final policy this fall, and the consumer advocacy groups and ISPs have slowly been gaining industry allies.

Last month, urged the FCC to impose open access. Amazon fears that, without it, cable operators will strike deals with competing online retailers and use monopolies on broadband ISP service to route customers to those Web sites.

The NAB, which generally has avoided the open-access debate, last month joined the fray by filing a reply in a related proceeding on telephone competition. Both telephone and cable-broadband providers should be barred from controlling the "essential pathway into consumers' homes," NAB said.

The National Cable & Telecommunications Association continues to make blocking open-access rules its top priority. The obligation of letting competitors access their network without making capital investments would deter companies from investing the millions needed to upgrade many local systems for high-speed data capacity, NCTA said in its comments last month. In areas where the networks are already built, the group added, the regulations would create higher prices and fewer services.

"While the costs of a multiple-access requirement would be substantial," said NCTA, "there would be virtually no countervailing benefits," in large part because cable systems are already beginning to offer multiple Internet providers.

But ACLU and the public advocacy groups argue that the cable multiple-ISP model isn't true open access because competing providers have very little freedom to offer or to profit from novel services. Current multiple-ISP offerings created by AOL Time Warner and others, they say, are little more than "rebranded" services identical to those the cable franchise is already offering. Plus, they add, wholesale prices are so high that profit margins are extremely thin for participating ISPs.

In a technical report issued last week, the groups called on policymakers to shun the rebranding model. The separate-channel approach is already used by cable companies offering private-network service to businesses and institutional users and is the most effective way to prevent manipulation of content or data speed, they said.

Acknowledging that the separate-channel model is expensive and a less efficient use of bandwidth, the groups said "policy-based" shared routing would be acceptable if cable companies were required to configure their systems so as not to block information and limit bandwidth of outside ISPs.

Confident that the FCC will impose or be forced to impose some type of open access, the groups predicted the next major access battle will be over routing requirements.