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Tech Law Journal |
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| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
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June 27, 2000 Ex Parte Submission William Kennard
Dear Chairman Kennard, Three major legal developments in the past few weeks make it critical for the Commission to act swiftly to establish a level, competitive playing field for telecommunications services, in general, and advanced telecommunications services in particular. We believe that the Commission must take immediate action to create comparable or equivalent competitive ground rules for services provided on cable and telephone wires: (1) It should approve the SBC application for long distance entry in Texas. This will level the playing field for competition in local and long distance service in Texas. (2) It should order AT&T to file tariffs at the FCC outlining the just, reasonable and nondiscriminatory "charges, practices, classifications and regulations" for broadband Internet interconnection. This will level the playing field for advanced services in Texas. (3) It should take similar steps in New York, where the local market has been irreversibly opened to competition. The dramatic developments of the past weeks include the following: The Department of Justice concluded that narrowband Internet service does not effectively compete with broadband Internet service and required AT&T to divest its interests in RoadRunner as a condition of the approval of the AT&T-MediaOne merger (U.S. Department of Justice v. AT&T Corp. and MediaOne Group, Inc., Amended Complaint, May 26, 2000). The Department of Justice found that Southwestern Bell Telephone Company (SWBT) is in full compliance with the section 271 market open conditions of the Telecommunications Act of 1996. In particular, the problems SWBT had been having with DSL service have been resolved (U.S. Department of Justice, Exparte Submission, Re: Application by SBC Communications Inc. et al. Pursuant to Section 271 of the Telecommunications Act of 1996 To Provide In-Region, InterLATA Service in Texas, CC Docket NO. 00-65, June 13, 2000). The Ninth Circuit Appeals Court concluded that "Under the Communications Act, this principle of telecommunications common carriage governs cable broadband as it does other means of Internet transmission such as telephone service and DSL" (AT&T v. City of Portland, Case No. 99-35609, Decided June 22, 2000). AT&T, which complained bitterly that SWBT was not providing nondiscriminatory access to DSL service, has ownership interests in millions of cable lines in Texas - lines that it continues to operate on a closed, proprietary basis. Ironically, AT&T complained about not being given access to SWBT's DSL services as follows (Comments Of AT&T Corp. in Opposition to SBC's Section 271 Application for Texas, CC Docket No. 00-44, January 3, 2000): Today, SWBT is exploiting its control over essential xDSL-related inputs, not only to prevent advanced services competition from AT&T and others, but also to perpetuate its virtual monopoly over the market for local voice services... SWBT has not, in fact, complied with its statutory duties to provide nondiscriminatory access to xDSL-capable loops (47 U.S.C. s. 271(c)(2)(B)(ii)&(iv)) and the operational support systems and processes that are needed to enable Texas consumers to benefit from a competitive market for xDSL services (47 U.S.(c)(2_(B)(ii))... Excite@Home, the dominant broadband Internet service provider in which AT&T has a controlling interest, has recently complained to the Federal Communications Commission that AOL must be required to open its instant message service (Letter to Robert Pitofsky and William Kennard, dated June 7, 2000). A bedrock principle of our approach to communications has been that users of critical communications functions should be able to communicate with all others, even those who use different service providers... It would have been a disaster for the Internet if e-mail had been held captive to a proprietary technology so that users of one e-mail system could not communicate with e-mail users of a different system or if one company could dictate the terms by which all other companies could use e-mail. Instant messaging must be subject to the same principle. The Ninth Circuit has found that "to the extent that @Home provides its subscribers Internet transmission over its cable broadband facilities, it is providing telecommunications service as defined in the Communications Act." Consequently, we can paraphrase and apply the argument that AT&T, the nation's largest cable modem service operator and majority owner of Excite@Home, made against SWBT and AOL as follows. AT&T is exploiting its control over essential cable-modem related inputs, not only to prevent advanced services competition from SWBT and others, but also to perpetuate its virtual monopoly over the market for cable video services. AT&T is not complying with its statutory duties to provide access to cable modem service under (47 U.S.C. s. 201 (a) and 251(a)). It will be a disaster for the broadband Internet if cable modem operators hold unaffiliated ISPs captive or dictate the terms by which they can communicate with Internet users. We believe that the FCC must establish broad principles for open access that apply to all advanced service providers, but in these markets, where DSL service has been irreversibly opened, the need for action is especially urgent. Sincerely, [signature] Mark Cooper Director of Research |
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