Goodlatte and Boucher Request FCC Rule Making on Open Access, Oppose Conditions on AOL TW Merger

(September 11, 2000) Two of the House of Representatives leading Internet proponents, Reps. Boucher and Goodlatte, wrote a letter to the FCC and FTC on September 7 requesting that the FCC institute a formal rule making proceeding to promulgate open access rules that apply to all technologies and companies, but that neither the FTC nor the FCC impose any open access conditions in their AOL Time Warner merger reviews.

	Rep. Bob Goodlatte (R-VA)

Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA) wrote a letter to Federal Communications Commission (FCC) Chairman William Kennard and Federal Trade Commission (FTC) Chairman Robert Pitofsky on September 7, 2000, in which they stated:

"We understand that the Commissions are giving consideration to placing conditions on the merger related to the issue of "open access" for Internet Service Providers. We are concerned that the application of such conditions without a comprehensive federal policy in place on this important issue could have detrimental effects on the current Internet marketplace and prove destructive to the fundamental structure of the Internet."

They added that they support open access, but believe that it must be implemented across all technologies and companies, not just for America Online and Time Warner. They continued:

"We therefore feel that it is critical that the FCC act immediately to formulate effective open access policies that apply to all of the various technologies offering high-speed Internet access. We understand that following the Portland decision, the FCC announced the initiation of proceedings to look at open access issues. While we applaud this move, we urge the FCC to augment this study by initiating an official rulemaking that will consider all technologies currently offering high-speed Internet service and apply open access comprehensively to all technologies."

Rep. Rick Boucher (D-VA)

Rep. Boucher is a senior member of the House Commerce Committee, and its Telecom Subcommittee, as well as the House Judiciary Committee, and its Courts and Intellectual Property Subcommittee. Most Internet related legislation passes before him.

Rep. Goodlatte is also a member of the House Judiciary Committee, and its Courts and Intellectual Property Subcommittee. Reps. Goodlatte and Boucher are two of the most knowledgeable members of the House on technology issues. They are Co-Chairs of the Internet Caucus, and frequently work together on Internet related issues.

Rep. Boucher and Rep. Goodlatte are cosponsoring a pair of bills (HR 1685 and HR 1686) with overlapping content, that address a number of Internet issues, including open access, spam, electronic signatures, online privacy, and promoting broadband deployment. While there have been two hearings in the House, there has been no other progress on the bills. The two conceded in their letter that "While we believe that our legislation is preferable to regulatory action, it has become clear that Congress is unlikely to act on our legislation in the remaining days of the 106th Congress."

The open access provisions referred to in their September 7 letter are found in Title V of HR 1685 and Title I of HR 1686. These titles are designed to force "broadband access transport providers" (BATPs), including Incumbent Local Exchange Carriers (ILECs) with DSL conditioned loops and cable companies, to unbundle their broadband transport and Internet access. It accomplishes this by amending antitrust law. Basically, the purpose is to stop the practice of cable companies to bundle their cable modem services with their Internet access services, and to protect the competitiveness of the many ISPs, online services, and other Internet access services.

First, these titles provide that ILECs which fail to provide conditioned loops are presumed to violate the Sherman Act. If an ILEC with market power in the market for broadband services fails to provide broadband conditioned "unbundled local loops when economically reasonable and technically feasible" it shall be presumed to be in violation of the Sherman Antitrust Act.

Second, these titles provide that BATPs which enter into discriminatory contracts are presumed to violate the Sherman Act.

Reps. Boucher and Goodlatte also explained in their letter why open access must be required for all technologies and all companies, rather than just one company at a time. "Should the FCC or FTC require that a single company in a single high-speed Internet technology implement an open access policy, uncertainty in the marketplace would skyrocket."