Ramblings & ephemera

The ACLU on monopoly control by ISPs

From the ACLU’s No Competition: How Monopoly Control of the Broadband Internet Threatens Free Speech:

Common carriage policy requires that a network owner – in this case, a telephone company – not discriminate against information by halting, slowing, or otherwise tampering with the transfer of any data. The purpose of common carriage is to prevent a network owner from leveraging its control over the pipeline for communication to gain power or control over the actual information, products and services that flow through it. This is not a new concept; for well over a century it has been applied in ways that have been central to the economic development of our nation, including canal systems, public highways, and the telegraph. And common carriage has been applied to the telephone system since the early 20th century, requiring it to serve all users in an equitable and nondiscriminatory fashion.

2. Cable networks are not open

Unlike phone companies, cable television providers do not have to provide nondiscriminatory access to their TV subscribers, because cable TV is not subject to the common carrier regulatory regime. As a result, the content that cable TV companies deliver is largely under their control. …

3. Cable providers wield total control over Internet use

… Cable providers are under no obligation to remain a neutral pipe for content over an end-to-end Internet – and have many incentives for interfering with that pipe:

Basic control of the service. Providers of course have control over the fundamentals of a customer’s Internet connection. For example, they can restrict the number of computers that a customer connects to the cable modem through a home network. They can control the overall speed and reliability of a customer’s online experie nce. And they can set the price for various levels of high-speed access.

Control over applications. Providers can block their customers from using particular applications, such as video conferencing, Internet telephony, and virtual private networks …

Control over access to content. Even more frightening is the growing ability of cable providers to interfere with content. … That is like the phone company being allowed to own restaurants and then provide good service and clear signals to customers who call Domino’s and frequent busy signals, disconnects and static for those calling Pizza Hut. …

Ability to force-feed content. Cable providers can also use their monopoly power to force-feed content to customers by requiring them to access the Internet through a particular home page containing material selected by the cable company. …

Ability to violate privacy. Finally, a cable provider’s absolute control over its network gives it the technical capacity to record everything its customers do online, down to the smallest mouse click. In February 2002, the nation’s third largest cable company, Comcast, without notification to its customers, began to track their Web browsing. …

According to data provided by the National Cable and Telecommunications Association, the top five cable companies in the United States control 75% of the market; if the proposed merger between Comcast and AT&T is approved, only four companies will control that 75%, with approximately 35% of all cable in the US controlled by Comcast alone. …

The FCC, meanwhile, decided in April 2002 to classify broadband Internet service over cable as an "interstate information service." That technical redefinition would mean that cable broadband could be completely exempt from federal regulation such as interconnection and common carriage requirements, as well as from oversight by local cable franchising authorities. …

In fact, the Internet would never have exploded into American life the way it has without regulations issued by the FCC that curbed the power of the telephone companies in ways that the agency is now refusing to do for cable:

  • In 1975, the FCC issued a landmark regulation preventing telephone companies from blocking their customers from attaching their own equipment to the phone network. If the agency had decided this issue the other way, regular Americans would not have been able to use computer modems, and the Internet as we know it never could have been created.
  • In 1980, the agency set out rules that required telephone companies to offer "data services" through separate affiliates because they would have had both the ability and the incentive to use their control of the telephone network to discriminate against unaffiliated, competing data services.
  • In 1983, the FCC issued a regulation preventing telephone companies from charging ISPs by the minute for their use of the local telephone network; if they had allowed such charges, consumers would have to pay per-minute fees for Internet access. That would have slowed the growth of the Internet, as such fees have done in Europe.

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