Letter from Rep. John Dingell (D-MI) to FCC Chairman Wm. Kennard.
Re: broadband open access.

Date: December 17, 1999.

December 17, 1999

The Honorable William E. Kennard
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554

Dear Chairman Kennard:

I am enclosing a copy of a letter I sent today to AT&T Chairman and Chief Executive Officer C. Michael Armstrong posing a number of questions about the broadband open access principles to which his company subscribed in a December 6th letter to you from AT&T, Mindspring Enterprises Inc., and the Chairman of the FCC Local and State Government Advisory Committee. I presume that you and the Commission would want answers to these and other questions, including those posed in separate letters on December 6th by other participants in the process that led to the development of these principles.

I am deeply troubled by that process, however, because of the difficulty of discerning either the nature of or legal authority for it. Both the Communications Act of 1934 and the Administrative Procedures Act derive from the belief that federal agencies are required to serve the public interest, and that the public interest is best determined through open and fair processes in which all concerned parties have an opportunity to participate. In this instance, it appears that you personally hand-picked a half-dozen individuals or entities and asked them to develop a means for providing consumers with cable open access. Your basis for selecting these parties, or the basis for excluding other interested parties, is not readily apparent. Nor is it apparent what direction you gave or what requests you made of each participant.

Ironically, the December 6th letters make evident just how the Commission has lagged behind on this issue. The FCC’s vision and competence are called into question by its failure to publicly scrutinize or even question, for example, the cable industry’s claim that no more than one Internet Service Provider could operate on a single cable system. Now, AT&T is essentially abandoning that claim, as well as other technical and economic arguments against open access. Further questions concern the exact legal status, for example, of a letter signed by only three of the original six participants in your process. If it is something more than just a set of principles agreed to by private parties, what is it? And what use do you or the Commission plan to make of it in the future?

As you recall, I was critical of the process used and conditions attached to the FCC’s approval of the SBC-Ameritech merger. In my view, it is patently unfair for the Commission to impose burdens on an individual company that do not apply equally to its competitors, particularly with regard to issues that carry much broader public policy implications. I continue to have concerns about the use of such conditions in similar cases: I question the FCC’s legal authority to impose them; I doubt they are the best way to resolve the problems they claim to address; I am concerned that the process for developing them is utterly lacking in transparency; and I believe it is highly improper for the Commission to erect extralegal barriers in order to extract from a single party concessions the law does not require.

Nonetheless, the Commission delayed that billion-dollar transaction until it gained SBC’s agreement to conditions that included, among other things, an immediate and concrete commitment to broadband open access, which remains absent in the cable television industry. Presumably, the Commission would not have done so in the SBC case unless it believed that open access served an important value. And yet, in the cable context, the only energy exerted in support of that same value involved convening a small group of parties personally selected by you, half of whom have rejected the final product of that process.

The enormous stakes here with respect to both competition and consumer welfare warrant an open and thorough review of this issue by the agency expert in formulating telecommunications policy. Whatever your hesitation to commence such an open and public process might have been before December 6th, surely AT&T’s abandonment of the technology argument requires a fresh examination of your premises. The FCC has a statutory role and duty to pursue this matter and to develop appropriate responses based on a full public record. I urge you to undertake that responsibility without further delay, and to conclude such a review by March 30, 2000, leaving sufficient time for the 106th Congress to legislate on the issue in the event such action appears warranted.

I would appreciate any clarification you can provide me on the questions and issues raised above, and request your response before the close of business on Friday, December 24, 1999. Thank you for your attention to this matter.


John D. Dingell
Ranking Member

cc: The Honorable W.J. "Billy" Tauzin
Commissioner Susan Ness
Commissioner Harold Furchtgott-Roth
Commissioner Michael Powell
Commissioner Gloria Tristani