Access to the Internet (inglés)

By Yochai Benkler, Alex Marino and Sarah Ma. Using the Internet depends, in the first instance, on access to the network. The initial emergence of “the Internet” in the early 1990s, from the increasing connectivity of a series of university and government networks alongside private services like America Online, Prodigy, and CompuServe, occurred almost entirely across slow dial-up modem connections...

Introduction

Using the Internet depends, in the first instance, on access to the network. The initial emergence of “the Internet” in the early 1990s, from the increasing connectivity of a series of university and government networks alongside private services like America Online, Prodigy, and CompuServe, occurred almost entirely across slow dial-up modem connections over telephone wires. Sufficient for email, Usenet news groups, transferring relatively small files, and later viewing simple web pages, slow transfer made consumption of data rich content infuriating and its provision unprofitable. There was, however, an important compatibility between the Internet architecture and the plain old telephone system. The basic protocols of the Internet (click here for a tutorial on TCP/IP) treat all information as equal. They do not recognize rich content or poor content, content owned by one person or another. So too, the basic telephone network, because it is regulated as a common carrier by the FCC, was required to treat all these data calls alike. These consistencies meant that in this new medium, unlike in the mass media of the 20th century—television, cable, and newspapers—no one had much of an advantage over anyone else in communicating their views to the world. The low bandwidth available also meant that “production value”—expensive sets and cameras—that also limited access to the opportunities to speak in traditional mass media, were less important. The result was a substantially more egalitarian communications medium than any that the 19th and 20th century had known, at least for a while and for limited communications applications.

In the mid-1990s, as the number of users grew and graphical user interfaces to the World Wide Web emerged, the variety and complexity of the available applications for the Internet increased dramatically. While modem speeds also increased, there were serious limitations on what traditional phone lines with traditional modems could do. These constraints and the prediction that the Internet would generate a large market for ‘high speed’ broadband access (synchronous transfer speeds in excess of 200 kilobits per second) led to substantial investments and a “race” to capture the broadband market. The vision for what was then called the National Information Infrastructure (NII) was that an entirely new high speed, fiber-optic network would eventually emerge. To some extent, this transformation was already happening, as AT&T, MCI, Sprint, and others began using redundant fiber optic systems for the long haul network. The problem was how to fiber the last mile, and the U.S. strategy in the first half of the 1990s was that the two main players—the telephone companies and the cable companies - would enter into competition in all services with each other, which would eventually result in two high capacity fibers being connected to every home.

This vision for the emergence of a NII was an important driving force, or at least an important justification offered for, the passage of the Telecommunications Act of 1996. The idea was to allow incumbent local exchange carriers to enter into the long distance and video delivery markets, to allow the cable carriers into the telephone market, and to allow the long distance carriers into both. In this competition of all players for all services, prices would decline, and redundant ubiquitous high-speed infrastructure, it was thought, would be built.

As things progressed over the course of the later 1990s, however, it became clear that most high-speed access services would be delivered initially through a variety of innovations in used legacy infrastructure (the copper wires of the telephone system and the coaxial cable of the cable companies). Competition increased in some areas of telephone service, but local telephone and cable markets seemed resistant to substantial competition. This seemed particularly true in competition for high-speed Internet connections to residences. Owners of existing conduits to the home had a clear advantage, but their networks required adaptation. Working on the assumption that whoever controlled the physical network would have a head-start in the 'battle for eyeballs', consolidation followed: AT&T sought to enter the local loop by expanding its cable network through the acquisition of TCI and Media One. AOL merged with Time Warner. The local exchange carriers merged, as did the seven Regional Bell Operating Companies and largest non-Bell local exchange carriers (GTE and SNET), which eventually combined into just four—Verizon, SBC, BellSouth, and US West/Qwest.

According to recent FCC data ( June 10, 2003) on high-speed access, there were 19.9 million high-speed data lines in service at the end of 2002 (an increase of 55% for the year). Of this 19.9 million, 87% (17.4 million) of the lines are for residential or small business use. The ratio of coaxial subscribers to DSL subscribers is nearly 2:1 (11.4 million coaxial, 6.5 million DSL). Both types of services seem to be increasing at relatively equal rates. Cable usage increased by 90% in 2002, while DSL usage increased by 105%.

Access to the legacy infrastructure has been pervaded by a concern over attempts by incumbents to use their clout in gaining control over the market for high-speed Internet access. The Telecommunications Act of 1996 required invasive regulation of the incumbent local telephone companies’ relationships with their competitors in order to assure reasonably equal access to competitors. Its implementation has been hard fought and difficult. As for access to the cable infrastructure, the need for regulation has been a central issue of public policy debate for several years. Section 706 of the 1996 Act (see notes to 47 U.S.C. § 157) directs the FCC to ensure the ‘reasonable and timely’ provision of advanced telecommunications capability and to take steps to accelerate its deployment if necessary. In its First Report under this section, in February 1999, the FCC concluded that no regulatory action was warranted with respect to broadband, finding its rate of deployment adequate. A Second Report, based upon more extensive data, was issued in August 2000. One month later the FCC released a Notice of Inquiry Concerning High-Speed Access to the Internet over Cable and other Facilities, leaving open the question as to whether access to cable infrastructure would be mandated.

In February of 2002 the Commission initiated a major push towards resolving the regulatory questions it faces, issuing a Third Report on deployment. More importantly, it issued a series of proposed rulemakings regarding cable, incumbent telephone carriers, and, in particular, the unbundling requirements placed on them. It also is attempting to develop an appropriate general framework towards wireline-based broadband. These provisions seem to be tending towards skepticism with respect to open access regulations. Additionally, there is an increased reliance on competition between cable and telephone, now increasingly being called "intermodal competition," rather than on competition between the incumbent platform owners and unaffiliated ISPs on both the telephone platform and the cable platform, now usually termed "intramodal competition."

Perhaps the most promising way to circumvent the problem of the proprietary last mile has been the possibility of license-free wireless infrastructure development, which is explored in the third segment of this module. A currently undeveloped approach is the deployment of publicly owned and operated infrastructure at the municipal level, perhaps by using the sewage systems as the primary conduit.

Finally, even if the physical layer of the infrastructure for accessing the Internet is not controlled by any single entity, there remains the problem of the logical layer of the infrastructure. Just as at the physical layer, if any single company controls the logical layer—the browser or operating system, the ISP software or the messaging platform—it can exert tremendous control over the way in which that infrastructure is controlled. This problem of access to the “soft” infrastructure is explored in the fourth segment of the module.

The Open Access debate unites three distinct concerns. The first is to neutralize the anti-competitive risks constituted by concentrated control of key facilities. This aspect will be the primary focus of the discussion of the telecommunications sector policy of unbundling. The second centers on the architecture of the network and the desire to maintain its end to end ( papers) architecture as the structure best endowed to support innovation. Finally, there is a wish to maintain and nurture a conduit of communication that is uniquely democratic in the modern era. The hope is to provide comparable communicative power to commercial and individual speech, amateur and professional. Regulatory choices adjusting the market environment and future technological evolution will ultimately determine whether the communications paradigm remains mired in the broadcast era, where a few speakers dominate content provision and the mass merely consume, or whether a richer system may emerge, capable of providing greater diversity of voices and individual expressive autonomy. The choices determining the outcome of these challenges are occurring at three layers in the information access process: the physical layer (computers, communications paths, routers); the logical layer (operating systems and software); and the content layer (informational and cultural inputs). As information is a composite good, control over any of the three layers of production threatens extension of control to the whole. (For information on how the physical, logical, and content layers of the infrastructure interact, explore this article) Much that has been covered in the other modules concerns the content layer. The following segments of this module address the contested control of the first two layers.

Access to Physical Layer Infrastructure (1) – Copper Wires

Throughout most of the 20th century the Bell System provided telephone service in the United States as a regulated monopoly. As competition for elements of the telephone service—primarily customer equipment and long distance—began to emerge in the 1960s, a fifteen-year process of antitrust enforcement began. This culminated in the breakup of AT&T in 1984 under what has come to be known as the Modified Final Judgment, or the MFJ—the order that settled the AT&T antitrust case. After the breakup, local telephone service continued to be a monopoly, with the seven Regional Bell Operating Companies (RBOCs) created by the MFJ from AT&T’s local phone divisions being prohibited from other lines of business that offered local telephone service. Long distance service was retained by AT&T, and was quite soon thereafter subject to competition, primarily from MCI and Sprint. The RBOCs and AT&T were regulated for the next 12 years by a combination of the court that enforced the MFJ under antitrust law, and the FCC enforcing the 1934 Communications Act.

The Telecommunications Act of 1996 replaced this arrangement. Its goal was to open up the local telephony market to competition. This departed radically from the conception that dominated local telephony regulation throughout most of the 20th century, namely, that local telephone service was a natural monopoly to be regulated but not subject to competition. Recognizing the interest of the incumbent local telephone companies to maintain their monopoly, the 1996 Act created a series of obligations on local exchange carriers in general, and on the RBOCs in particular, to cooperate with new entrants—their emerging competitors. In order to create a competitive marketplace the legislation offered the RBOCs the opportunity to enter the long-distance market once they had taken the necessary steps to irreversibly guarantee local competition.

Three mechanisms were provided to this end: mandating sale of telephone services at wholesale rates; leasing of access to unbundled elements of the network by competitors; and interconnection. The basic idea underlying these three mechanisms is that it not be necessary for a competitor to have in place a full network, completely redundant to the incumbent’s network, before being able to offer competitive services. Any competitor can therefore enter the market by simply buying “minutes” and reselling them more efficiently (the resale component of the arrangement). It is intended largely to give an entrant an opportunity to build local reputation while preparing to build its competing facilities. Second, a competitor can buy, at cost, access to any network element of the incumbent. A competitor, for example, can simply deploy switches and some large trunks, but then lease lines from the switch to customers’ homes from the incumbent at cost. This is known as unbundling. Finally, a competitor that has a fully functional network to some customers in an area has a right to interconnection—to be connected at cost to the incumbent’s network, so as to provide to its customers connections to all of the customers of the incumbent. The latter provision is crucial, because it allows an entrant to compete with an incumbent on an equal footing with regard to the value of telephone as a network good—a good whose value increases the more others consume the same good. If an incumbent were not required to interconnect, a competitor could only offer its customers the value of connecting to its other customers, and not to everyone on the planet. Denial of interconnection was a central strategy that the Bell System had used early in the 20th century to eliminate competitors in local markets, and again to prevent competition in long distance in the 1960s and 1970s. The 1996 Act sought to ensure that it would not be used again.

The incumbents fought implementation of the requirements to open their networks on a variety of fronts, largely through litigation. The most important of these efforts was the Iowa Utilities litigation. In the first iteration, the incumbents succeeded in winning much of what they wanted from the court of appeals, but were largely reversed by the Supreme Court in AT & T v Iowa Utilities Board, 525 US 366 (1999). After the case was sent back to the court of appeals, that court upheld the FCC's general approach, but invalidated the specific requirements that the Commission had required of the incumbents. In May, 2002, however, in Verizon Communications, Inc., v. FCC, the Supreme Court finally reversed the court of appeals on all the items on which it had held for the incumbent exchange carriers, and adopted the FCC's cross petition, both in methodology and the reasonableness of the actual requirements. Six years after the 1996 Act was passed, with much litigation and stalling, the Supreme Court seems to have, for the moment, allowed the FCC quite significant leeway to regulate the rate and structure of the unbundling requirement. In early March 2004, however, the Court of the Appeals for the DC Circuit once again rejected proposed FCC unbundling rules in U.S Telecom Assn. v. FCC. The court struck down rules that allowed state regulators to set low leasing rates. It is currently unclear whether the FCC will appeal the decision to the Supreme Court.

On the other hand, the mood at the FCC seems to have turned from one vigorously dedicated to opening up the telephony platform to competition not only in voice telephony, but also in broadband/DSL delivery, to one that is much more hesitant to treat these types of services as common carriers. It is this issue – the way in which the measures, primarily unbundling, are applied to broadband over telephone infrastructure – that matters most to understanding the problem of Internet access over this platform. Through a variety of approaches for high-speed data transmission over copper wires, generally known as DSL, telephone infrastructure can be used to offer broadband Internet access. The question becomes whether the mechanisms adopted by the 1996 Act, as implemented by the Commission, can ensure that broadband Internet access over the telephone system can be competitive and open. A glimpse at RBOC attempts to receive permission to offer long distance service suggests caution with regard to that question.

The 1996 Act had conditioned RBOC entry into long distance markets on FCC approval, in consultation with the US Department of Justice. Approval depended on a finding that the applying RBOC had indeed opened its local network to competition.

The first successful application, after a number had failed, was Bell Atlantic’s application to provide long distance service in the New York area, the most lucrative market in the United States. Bell Atlantic had taken a more cooperative tack than all of its sister RBOCs, and had advanced further in opening up its network to interconnection and unbundling. The FCC eventually approved Bell Atlantic’s application, a decision upheld by the Federal Court of Appeals for the D.C. Circuit. Nonetheless, the Department of Justice Evaluation of Bell Atlantic’s request, which counseled against granting Bell Atlantic's request, reveals the level of detail at which an incumbent can effectively thwart competition. The quality of the graphical user interface for receiving orders for entry, the speed of deployment of service personnel, and the design of order forms came under scrutiny, suggesting that for all practical purposes the opportunities for an incumbent to make the lives of competitors unbearable were infinite.

The lesson from these failed efforts need not be that competition or open infrastructure is impossible. But there is also little reason to believe that a formal requirement of openness will necessarily lead to competition and an open network. Even where access to broadband service operates on a common carriage basis, with explicit and extensive requirements for competitors to cooperate, there continues to be wide opportunity for incumbents to capture and control large segments of the Internet access market.

On this background, the recent developments in this area both at the FCC level and at the Court of Appeals for the D.C. Circuit leave one with little cause to be confident that significant competition among DSL providers will emerge. The two most relevant FCC documents are the Appropriate Framework for Broadband Access to the Internet over Wireline Facilities NPRM and the Incumbent LEC Broadband Telecommunications Services NPRM. A part of the UNE Triennial Review is also relevant. The D.C. opinion is U.S. Telecomm Ass'n v. FCC.

The "Appropriate Framework" NPRM generalizes the most important conceptual move in this area by tentatively categorizing broadband services over a wire as "information services" under the Communications Act. The definition of “information service” in the Act is can be found in section 3(a), paragraph 41:

The term ‘information service' means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

This categorization is immensely important because there is no statutory category of regulated information services. The definition is in contradistinction to "telecommunications services" or common carriers, which are subject to regulation. The explicit intent of the Commission in making this classificatory move was to allow itself to build an appropriate regulatory framework from the ground up, without being encumbered by trying to fit new services into old regulatory boxes. The result is likely to be to make any form of regulation very difficult.

Plainly, the definition of “information service” is quite broad and explicitly encompasses even online newspapers. The Commission will therefore have to be highly solicitous of the providers of broadband, and will likely regulate very lightly, if at all. The definition is also likely to be regarded by courts reviewing any regulation as indicative that the Commission believes these entities to be traditional media organs, which receive the highest First Amendment protection. In other words, courts would be likely to treat any form of access or unbundling requirements as functionally equivalent to a implementing a “common carrier” requirement on a newspaper and requiring it to open up some of its editorial pages. This analogy will surely prevent any access regulation.

An alternative approach would be to look at the functional architecture of the service, noticing that it is comprised of two distinct services—a platform service that in principle looks and behaves like a telecommunications service, and an ISP/value-added service that looks and feels like an ISP service. The latter is quite properly designated an information service. The former is not. Treating their combination, as purely an information service is no more necessary than treating local and long distance service as a single "telephone service" category would have been. On this view, the Commission's definitions seem to run contrary to the original model of the 1996 Act, which sought to move away from regulation of types of companies towards regulation of specific functions that different companies combine. Had the Commission indeed defined broadband services as involving both a telecommunications service and an information service, it could easily have achieved its goal in this definition—to allow these services not to be encumbered by inappropriately applicable regulatory constraints developed for plain old telephone service. The Commission is empowered, under the Act, to refrain from regulating an advanced telecommunications service when it deems that refraining would serve the public interest. Had it defined the platform component of the broadband service as a "telecommunications service," it could have started with the regulatory baseline applicable to common carriers and telecommunications services, and then decided to forbear from imposing regulatory components of that framework that would be inappropriate to broadband service. As things stand, however, the recent move to classifying all broadband over wireline as an information service tends to suggest there will be little regulation to force incumbents to open their networks to competitors.

The Incumbent LEC Broadband NPRM applies this framework to incumbent local exchange carriers, tentatively finding that these too are information services. The most important focus here is on the presence of substantial intermodal competition—that is, largely, that DSL has strong competition from cable broadband, which does not allow the incumbent telephony carriers to behave like monopolists.

The UNE Triennial review refers to a comprehensive review of all the Commission's approach to unbundling in the telephony infrastructure. The most important component for purposes of broadband is the question of whether the high frequency portion of a wire will be required to be unbundled. In an earlier order, the Line Sharing Order, the FCC had required the telephone companies to unbundle the high frequency portion of their wires. This is a metaphorical way of referring to the following technical situation. Voice telephony encodes the voice it carries as a series of low frequency electromagnetic signals. Data communications encode data using high frequency signals. We are used to thinking of "frequencies" as a physical thing in the airwaves, but that is entirely false. Frequency measures a property of any electromagnetic signal, irrespective of whether it travels in the air or in a wire. Because voice and data use electromagnetic signals with such different characteristics, they can use the same wire without confusing equipment connected to the wire as to which signals are voice, and which are data. Competitors of the incumbents wanted to rely on this fact to purchase from the incumbent LECs the right to send data over the same wires that the incumbents were sending voice. This would enable them to sell data services without buying a whole dedicated line. The incumbents wanted to sell the competitive entrants a much more expensive "network element"—the whole wire. The Commission conceptualized this as though there was a pipeline with different frequencies in it, and required incumbents to unbundle the higher frequency portion. From a policy perspective, this was clearly the right choice if the correct goal is to lower the entry costs to competitors of the incumbents, without harming the incumbents (beyond the harm they suffer from the cheaper introduction of competition). In the UNE Triennial Review, the FCC is requesting comment on whether it should reopen this requirement. This inquiry may, however, have been rendered moot by a decision rendered in late May 2002 by the D.C. Circuit, which invalidated the Line Sharing Order as unreasonable. It is not entirely clear that this opinion quite fully squares with the relatively broad discretion and deference that could be read into the U.S. Supreme Court decision in Verizon, although it is not directly in conflict with that holding.

The conclusion to all this is, unsurprisingly, that things are in flux in the telephony-based infrastructure for broadband Internet access. While the Supreme Court seems to have recently given the Commission broader powers to use unbundling as a means of facilitating entry by competitors, both the Commission itself and the D.C. Circuit are actually moving away from regulating the use of shared facilities to promote competition among competitors using the incumbent telephony infrastructure. Instead, they seem to be relying more heavily than ever on the presence and long-term beneficial effect of intermodal competition from cable.

Access to Physical Layer Infrastructure (2) - Coaxial Cable

At least 80% of US households have access to cable service. This infrastructure is currently being upgraded from the coaxial cable—designed for the one-way transmission of video programming—to hybrid fiber/co-axial for the purpose of broadband Internet access. Data carriage capacity is higher for cable broadband than comparably priced DSL services. It is also more widely available throughout the cable service area, because DSL availability is limited by distance from a central office. Cable transfer speeds, however, fluctuate in accordance with the number of users at a given time, while DSL is a dedicated line and more predictable. Cable Commission’s report Broadband Today, though slightly dated, still provides a good starting point to understand the forces operating in this area.

The open access debate arises from the cable network owners' practice of bundling cable modem access and Internet service provider (ISP) selection. They had initially signed exclusive contracts with affiliated ISPs, Excite@home and Roadrunner. More recently, these cable providers have been providing their own systems. Cable providers, unlike the telephone companies, are regulated under Title VI of the Communications Act. Most importantly, this means that they have never been not subject to common carrier restrictions, and the various requirements imposed on the incumbent local exchange carriers to cooperate with competitors do not apply to them. Independent ISPs feared that exclusion from the cable network would leave them incapable of competing in quality of service with the cable operators’ affiliated ISPs. The DSL providers, in particular the incumbent local telephone carriers, objected to the fact that they must provide access to their network to competitors, whereas the cable companies need not. In opposition to the demands of open access advocates, cable network owners and their allies argued that imposition of forced access upon them will result in slowing the availability of high-speed access. The cable infrastructure requires adaptation to be used interactively, and their claim is that in order to finance the adaptation they need exclusive control. They have also asserted that technical and security questions impede the opening of access to other ISPs. The politics of the debate are complex, and heavily influenced by interest. AOL, for example, was initially involved in the OpenNet coalition, a lobbying effort formed in 1999 and intended to persuade the FCC to impose open access requirements on cable service providers. It reversed its position after it announced its merger with Time Warner. The merger, however, provided the first opportunity to impose limited open access requirements as part of the merger approval.

A central aspect of concern with cable access is whether an owner of physical infrastructure that also controls Internet access can to a large extent affect the content of the information its customers will see and how they will use it. These concerns were given grounding and heightened by a White Paper from Cisco extolling the benefits of such a strategy as part of a sales pitch offering the tools for its execution: “ Controlling Your Network - A Must for Cable Operators”. Over and above the concerns about parity in competition, there is a concern over the eventual bifurcation of the Net, with high-end access available to commercial content, and low-level access for non-commercial content. The emergence of commercial services such as Akamai, which accelerates access to e-commerce and commercial sites, points to the tendency towards bifurcation present even in the absence of infrastructure-based handicapping. With an added layer of preference for commercial content by the infrastructure itself, we could find ourselves with a medium much more like the mass media of the 20th century than the Internet of the 1990s. Restrictive end-user contracts from cable companies indicate that they are concerned about competition not only from their industry competitors, but also from content produced by their users. End-user contracts forbid media streaming of more than ten minutes duration and the operation of a server over the cable modem network. Other means by which proprietors can exploit their position include selective caching of content produced by them or their partners (so that it is easier to access and cleaner to watch), and the collection of data on customer use patterns.

The general response at the national level to efforts to open access to the cable infrastructure was cool. The FCC, for example, refused to impose open access requirements upon AT&T in reviewing its mergers with TCI and MediaOne. ( See Lessig on access in the MediaOne Merger.)

The first successes that open access advocates enjoyed were at a local level. Cable companies are regulated as much, if not more, by local franchising authorities as they are by the FCC. Portland, Oregon was among the first locales whose local franchising authority mandated open access by ordinance. These requirements have been overturned in court in holdings of two varieties. In the case of Portland an interpretive approach to the 1996 Act deemed cable broadband access not within the definition of cable service. In Broward County, Florida, a Federal District Court took a constitutional approach, and found that broadband access was a cable service, but that imposition of conditions on its provision violated the First Amendment.

47 USC Section 541(c) of the Communications Act states: "Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service." But in many instances, the franchisee needs the franchising authority's approval in case of sale. This, at least in principle, opens the possibility of the imposition of conditions upon the grant of that approval under 47 USC 537, and under 47 USC 533(d)(2) which states: “Nothing in this section shall be construed to prevent any State or franchising authority from prohibiting the ownership or control of a cable system in a jurisdiction by any person … (2) in circumstances in which the State or franchising authority determines that the acquisition of such a cable system may eliminate or reduce competition in the delivery of cable service in such jurisdiction.”

(a) AT&T Corp. v. City of Portland

When AT&T bought TCI, it sought to obtain the cable franchises that TCI had previously held. In Portland, this was used as an opportunity to get AT&T to comply with the city’s requirement that AT&T open up the cable broadband infrastructure to competitors to offer Internet service. AT&T rejected Portland’s open access requirement, and its request to transfer the franchise was accordingly denied. AT&T sued the city, seeking invalidation of the ordinance. The District Court upheld its legality but was overruled by the 9th Circuit on appeal. The Court of Appeals rejected the classification of cable broadband access as a 'cable service', distinguishing it from the 'one-way transmission' of programming with highly limited subscriber interaction’. Consequently Portland did not have any legal basis to regulate the delivery of the service under the franchise agreement. Indeed the court held that no cable franchise was required for delivery of broadband services. The court decided that broadband Internet access was a hybrid service, constituted in one part (the 'pipeline') by a telecommunications service and the other (an ISP) by information service. Accordingly, regulation of the service by the cable franchising authority was struck down.

(b) Comcast Cablevision of Broward County, Inc. v. Broward County, Florida

Broward County adopted an open access ordinance requiring the cable franchise to provide access to its broadband network 'on rates, terms and conditions at least as favorable as those on which it provides such access to itself.' The ordinance was the subject of a successful First Amendment challenge for interference in a cable broadcaster's power to determine programming available on their systems. Judge Middlebooks likened open access to the right to reply statute found unconstitutional in Miami Herald Pub. Co. v. Tornillo, and dismissed the argument that cable companies enjoyed a bottleneck monopoly over access to the Internet on the grounds that most users connect over phone lines.

Access requirements at the Federal Level —Limited and Diminishing

One of the determinative factors in both these cases was the FCC’s unwillingness to support open access. An important, though in some sense little stated, concern faced by the courts was whether such a question of national communications policy ought to be decided on a local basis by hundreds of franchising authorities. National policy seemed to yield to sustained public pressure when it came time for the relevant federal agencies to approve the AOL-Time Warner merger. In a sense, that merger crystallized the concerns with a fully integrated cable broadband infrastructure. The nation’s largest ISP bought one of the two largest cable operators, and one of the nation’s largest content libraries. Together, the picture was one of a fully integrated network. Consumers would be presented with an infrastructure and an interface controlled by one corporation. This corporation also controlled many media properties and would have incentive to use the opportunities control over the infrastructure gave it to focus users’ attention and time on its content to the detriment of others. To obtain FTC approval of its proposed merger with AOL, Time Warner entered into a five year consent agreement to allow access by rival ISP Earthlink to their broadband network in 70% of their markets, prior to making available AOL’s broadband ISP service (November 2000). In addition, it had to contract with at least two other ISPs within ninety days of the launch of AOL’s service. In the remaining markets the company had to contract with three non-affiliated ISPs within ninety days of the launch of AOL’s service on terms and conditions as favorable as those provided to AOL and affiliated ISPs. AOL Time Warner also had to provide network flow data and interconnection points to affiliated and non-affiliated providers on a non-discriminatory basis. While this is only a limited requirement, and only applied to AOL Time Warner, it was interpreted at the time as an important first instance of such a requirement. Following this decision, the FCC issued a Notice of Inquiry process regarding access to high-speed Internet access over cable, focused in large measure on the question of whether something like the moderated open access requirement imposed on AOL Time Warner should be generalized.

The most recent FCC activity in this area seems, however, to begin a tentative move away from open access. As part of the series of rulemakings issued in early 2002, the FCC issued a Declaratory Ruling and NPRM that makes two important moves away from open access in cable. Both involve the declaration that broadband Internet access over cable is not a service that combines telecommunications services with information services, but is, rather, purely an information service. The first, direct, effect of this declaration is securely to federalize the issue of access to the cable broadband platform. By defining cable broadband as an interstate information service, the FCC asserted sole jurisdiction over it, and thereby preempted action by local franchising authorities. Given that these authorities were the primary sources of efforts to regulate cable companies’ broadband services, this decision was an important conclusion to the move towards federalization which was already implicit in AT&T v. Portland. The second, probably more important but less direct effect of this declaration was to make it very difficult for the Commission to adopt a seriously invasive access model. As an information service, cable broadband is categorized very broadly. It is in a category that could apply to many mediums (such as online newspapers), which could never constitutionally be required to open their facilities to others. The result is that AOL Time Warner is subject to some access regulation because of the merger. If other cable providers similarly merge, the Federal Trade Commission might impose some access requirement, as it did in the AOL Time Warner merger. But the FCC at this stage seems to have decided that competition from the Incumbent LECs will suffice to secure non-monopolistic behavior.

However, in October 2003, a three judge panel of 9 th Circuit Court of Appeals reiterated the classifications hinted at in AT&T v. Portland. In Brand X Internet Services v. FCC, the court affirmed that cable modem providers were both information services and telecommunications services. The panel refrained from applying a standard Chevron analysis, and instead argued that it was bound by 9 th Circuit precedent ( Portland). The implication of this “dual designation” is that, to the extent that current FCC rules reject the “telecommunications services” designation (along with its accompanying regulatory effects), they are invalid. The FCC has petitioned for a rehearing en banc, claiming that the court should apply Chevron and give deference to the FCC’s interpretation of how the Communications Act defines cable modem service. Brand X has submitted an opposition to a rehearing.

The result of the cable decisions, given the parallel move away from requiring extensive unbundling and forced sharing of inputs on the telephony side, is that the FCC is preparing to make peace with a duopoly situation based on pipeline ownership. Almost all current broadband over telephone lines is offered by incumbent LECs. Almost all cable broadband access is offered by ISP affiliates of the cable operators. Each pipeline owner will, for all practical purposes, enjoy a monopoly over its own pipeline. Even assuming the best of all possible worlds, where the reach of each pipe is equal and equally comprehensive, we are left with a duopoly. Two are better than one, perhaps, but to describe such a system as achieving the open, competitive system that the Telecommunications Act of 1996 envisioned would be something of an exaggeration.

The Threat to Innovation

While many of the arguments about open access are concerned with traditional antitrust concerns—consumer welfare, quality, and price of service—and with capacity of users to speak, Mark Lemley and Larry Lessig formulated a different argument in support of access. They focus on the potential for cable access bundling to wipe out the layer of ISPs that have provided much of the innovative impetus for the flourishing of the web. In addition, they identify this as a step towards undermining the end-to-end design principle that undergirded the network architecture of the Internet, which ensured maximum accessibility by placing all intelligence at the end of the network rather than at its core, where, it has been said, stupidity is its strength.

License-Free Wireless Spectrum

Many of the problems that plague the deployment of high-speed Internet access over the legacy wired infrastructure have to do with the very high costs of construction and the difficulty of acquiring the necessary rights of way to deploy the system. One infrastructure for communications that does not suffer from similarly high set-up costs, at least not necessarily, is wireless communication. At the moment, the limited, controlled nature of wired infrastructure is being replicated in the air by licensing policies that limit the number of providers who can offer Internet access. But this regulatory creation of a controlled-infrastructure model for wireless communications is technically obsolete.

Until the last decade, the universe of options for regulating spectrum was technologically limited. Given the relative crudeness of reception devices that were cheap enough for consumer markets, the general understanding was that the only way for a signal from a transmitter to be received by a receiver was for the transmitter to be louder than all other sources of radiation in a given frequency. This meant that if two or more transmitters tried to be "heard" over that frequency, there would be "interference"—neither would be sufficiently louder than the other. This basic technological-economic fact limited the menu of institutional options open for government in regulating wireless transmission. Someone had to be given the exclusive right to transmit loudly over a given narrow frequency, at a given time, in a given location and power. Policy debates in the area of spectrum management have therefore focused for almost half a century on whether that someone should be chosen by licensing or by auctioning, and to what extent the way they use their license should be determined by the FCC as opposed to the licensees.

Advances in computer processing, network communications, and wireless transmission technologies, mostly spread spectrum and software defined radios, have now made possible a third alternative. Receivers and transmitters can be made intelligent enough to share spectrum. Multiple users can and do share wide swaths of spectrum simultaneously. Allocation and assignment are achieved on a packet-by-packet basis, using equipment-embedded protocols rather than organizational decisions by a licensee or spectrum owner. "Spectrum" is "managed" not by licensing, but on a license-free model, where all equipment that complies with some standard for sharing—at a minimum complying with a power limit—is permitted to operate without a license.

The technological shift has begun to bring about some initial changes in spectrum policy and significant developments in the equipment and service markets. Traditional spectrum policy permitted operation of low power devices (cordless phones, garage openers, microwave ovens) in very narrow bands of spectrum like the much-used 900MHz band and 2.4GHz band. These were generally dumping grounds for sundry useful low power emitters rather a focus of communications policy. As the 1990s progressed, the FCC permitted operation in the U-PCS band and the U-NII band (see the FCC's Unlicensed National Information Infrastructure Order of 1997), as two instances where the FCC self-consciously permitted operation of low-power devices without a license. This policy was based on the expectation that communications services would be offered in reliance on a license-free model. The problem was that license-free service was permitted and designed not as a primary focus, but primarily by reference to its potential interference with licensed incumbent services. The U-NII Band in particular (the 300 MHz in which license free operation was permitted) was sliced and regulated largely by a seemingly unguided concern for incumbent licensed services, not for what would optimize operation of the license-free devices themselves. More recently, the FCC has begun to look more seriously at flexible transceivers using license free spectrum. Most importantly, the Commission adopted the Ultra-Wide Band order and the permission to manufacture Software Defined Radios. These are substantial moves towards permission for equipment manufacturers to experiment with wireless communications that utilize a combination of techniques to break away from the old model of wireless communication and create an entirely new model.

Market actors have been less reticent about license-free spectrum, and some have taken advantage of the limited spectrum that is available to develop quite significant applications. Apple’s Airport is a particularly visible example, but many PC producers are now integrating license-free wireless networking into their computers, and some equipment manufacturers (such as Nokia) have developed equipment that could be the basis for large-scale high-speed data networks owned by no one. Actual networks built around license-free equipment have emerged on a nonprofit basis around the world.

The year 2001 seemed to have been for license-free wireless what 1999 was for free software. Equipment using standards developed for the scraps of spectrum in which license-free operation is permitted are beginning to become ubiquitous. Different standards (802.11 and Blue Tooth for example) were accepted in devices using spectrum owned by no one and capable of transmitting at much higher speeds than cable or DSL. In conjunction with TCP/IP protocols, these devices can provide the last ten miles, one mile, or at least 100 feet connection to the Internet and make it mobile to boot. If this happens, it would radically alter the lay of the land on Internet access. By late 2001 and early 2002, this possibility began to be appreciated even in some media accounts.

To get a flavor what is possible, you can browse around work done by Dave Hughes, a researcher who conducted numerous field tests connecting schools in rural areas; you can read about them here, or listen to him give a presentation. Another important locus of implementation projects is the Dandin Group, headed by Dewayne Hendricks. Important and accessible explanations are available in Reed's Locus. The intrepid may wish to examine the technical detail provided by the FCC Technological Advisory Committee's working group on spectrum management (SWG). Hardware manufacturers such as Nokia and Apple are driving the evolution of these forms with systems such as Wireless Rooftop Routing (technical papers) and Airport. You can also read the CarNet proposal for a mobile wireless network. Eli Noam has proposed a market model which would clear competing uses based on willingness to pay a price which would vary depending upon the volume of traffic on the network at the time. I have argued for a system more akin to the Internet protocol itself, without reference to payment at all, as the benefits of such an arrangement to democracy and autonomy outweigh its functional deficiencies. The wireless spectrum can provide a common ‘network of last resort’ coexisting with the traditional alternatives. Critics, such as Thomas Hazlett, are skeptical of the capacity of wireless to provide broadband requirements. Given that broadcast regulation by the FCC has always been predicated upon the assumption of scarcity and a consequent need to limit users so as to prevent interference, the implications of spread spectrum technology are profound. Some, like Noam, Lessig, and myself have argued that refusal to permit widespread use of license-free devices could make FCC regulation of radio unconstitutional.

Access to the Logical Layer: ‘Soft’ Infrastructure

“In digital networks, this is the key layer: this is where network configuration is defined, where interconnection between separate physical networks is made possible or prevented, and where co-existence of various service providers is permitted or denied.” Bar & Sandvig, Rules from Truth: Post-Convergence Policy for Access.

(a) Network Effects, Tippy Markets & Lock-in

While obstacles to market entry at the physical layer are caused by the high costs and time required to establish alternative facilities, soft infrastructure erects barriers through a series of positive feedback mechanisms that permit one company to lock in an early advantage and make entry by competitors difficult. As the amicus economists’ brief in the case of Lotus v. Borland describes, the nature of software markets means that products whose initial success may be serendipitous and contingent can capture a market and exclude products that are intrinsically better by some functional measure.

Moreover, markets in software that perform discrete functions are often closely related to each other. Very often providing a given functionality can depend on access to functionality from software in an already captured market already. This characteristic provides opportunity for a company that has become dominant in one market, to leverage its position and extend its monopoly into markets that rely on access to the segment of the logical layer that it controls. This was the government’s argument in the case against Microsoft and its Windows OS, vis-à-vis web browsers. The District Court’s findings of fact in the Microsoft case document in detail the strategies used to produce this effect: bundling of the web browser with the OS, controlling the active desktop, and manipulating user reliance on default settings. The Microsoft case illustrates that, in principle, antitrust policy can work in 'tippy' markets by enforcing interoperability. This policy largely parallels the requirement in telecommunications markets of enforcing interconnection. Copyright law could attenuate this danger to some extent, though not completely, by privileging reverse engineering and refusing protection to interface aspects essential for the viability of new market entrants, thus ensuring backwards compatibility and horizontal interoperability, as the court in Lotus v. Borland did.

(b) Software based platforms for content delivery

The insight is by no means limited, at least in principle, to Microsoft and operating systems. Prior to the approval of their merger with Time Warner, America Online resisted opening its Instant Messaging systems to interoperability with other instant messaging systems. At the time, AOL IM and ICQ dominated the IM market with 90% of installed clients. AOL's refusal to interoperate with other providers means that users must run parallel instant messaging clients to communicate with ‘buddies’ using services offered by other providers such as Odigo, iCast, Yahoo, and Microsoft. AOL actively obstructed competitors' attempts to interact. It argued that the swift growth of their competitors' user base demonstrates the absences of any anti-competitive threat, and that control over interoperation was necessary to assure integrity of their service. The success of IM has attracted numerous application developers aiming to capitalize on its potential as a content delivery platform, incorporating telephony, video conferencing and a variety of point-of-presence driven services. Control over the IM platform would, one might be concerned, give AOL similar opportunity to exert power over these applications that Microsoft’s power gave it vis-à-vis application developers who needed access to its operating system. Subsequent to the FTC’s imposition of approval conditions on the AOL/Time Warner merger, the FCC appended a requirement that AOL provide access to IM should the service be synthesized with cable broadband to offer ‘advanced instant messaging'.

In an August 2003 decision, however, the FCC rescinded this earlier requirement and allowed AOL/Time Warner to implement advanced instant messaging over its cable networks without opening them up to competition. The FCC based this decision on AOL’s recent loss in market share and a lack of concern from competitors such as Microsoft and Yahoo!. The fact that decision found minimal complaint from consumer advocates further shows that AOL was not exerting undue influence in this area.

The effects of AOL compatibility restrictions are exemplified in Jabber, the open-source project that provides instant messaging functionality that is compatible with Yahoo and MSN's instant messaging, but not AOL's AIM and ICQ. One should, however, remain somewhat cautious about the claim that AOL's instant messaging programs will in fact hold bottleneck control. Firms attempting to offer client-side interoperability suggest that, with some initial start-up costs, it is possible that AOL's hold will be substantially less complete than Microsoft's.

One solution to the problem of closed platforms at the logical layer is to develop open public standards for how applications operate and interoperate with each other. A standard is a codified way of performing a function. It allows anyone who needs to perform the function to do so based on the standard and be confident that the application will work with equipment and other applications that similarly adhere to the standard. If those who need to use the functionality can participate in formulating the standard, and it is open for anyone to read and fully understand, then different applications created by different companies or individuals can all interoperate without giving anyone the power to control communications that depend on the functionality. Organizations like the IETF, W3C, The Internet Society, and the IEEE provide for standard setting that, when followed, provides an open framework for software interoperability. A more radical remedy that is more complete in its promise to maintain an open logical layer is placing free or open source software in critical junctures of the logical layer. The Apache server software that most web servers use, and Perl, the programming language used for most scripts and many other cross platform functionalities on the Web, are already free. In September 2000, the President's Information Technology Advisory Committee produced a report on open source recommending concerted federal support. As more of the core of the logical layer becomes open for all to see, use, and modify, the logical layer becomes an open layer that cannot be manipulated by any one entity to control Internet access.

Universal Service: progressive social policy or fig-leaf for incumbent’s interests?

While most of the focus in this module has been on the structure of access to the Internet and the ways in which it does or does not give infrastructure owners the power to control use of the Internet, an important social concern with Internet access has been the distribution of access across class, race, gender, age, and education level. Known throughout the latter part of the 1990s as the Digital Divide, the problem is one that has been treated under the umbrella of “ universal service.”

“Universal service” originally referred to the need for a unified service in a context of a fragmented phone system without interconnection requirements, rather than a conscious policy to promote residential telephone penetration and rural telecommunications facilities through subsidies gleaned from long-distance service. It was introduced as a concept by AT&T’s President, Theodore Vale, in 1907, largely as a justification for the Bell System’s push to monopolize telephone service throughout the United States. According to Milton Mueller, as competition began to enter the long-distance market in the 1970s, Bell invoked universal service as part of its mission for reasons of political expediency, namely to retain their position as a regulated monopoly.

Coming from these inauspicious roots, the solution developed in the Telecommunications Act of 1996 was incomplete. The FCC operates targeted schemes to bring access to specified groups under programs like Lifeline and Link-Up, which provide plain old telephone service of some degree to the poorest users. E-Rate is the program aiming to bring schools on-line, and the one most closely related to Internet access. Under the 1996 Act the FCC and a joint federal-state board is supposed to develop a standard of "an evolving level of telecommunications services" that is to be reconsidered and updated periodically, giving special attention to subsidizing poor users. This evolving definition of universal service is intended to include services that most Americans subscribe to, but the question of “universal” Internet access remains undetermined.

Any service brought within the definition becomes eligible for subsidy. The FCC released a first definition in May 1997 and presented a detailed Report to Congress on the functioning of universal service in 1997. Nonetheless, while much political airtime has been spent on the Digital Divide, active subsidization has achieved relatively little beyond the decreasing the price of computers and Internet connections.

Discussion Topics

1. AT&T Corp. v. City of Portland. Imagine that you are a Supreme Court justice hearing arguments from AT&T and the City of Portland on appeal. You know that the Federal Trade Commission has required AOL Time Warner to open its network to some competitors, and that the FCC is considering the issue more broadly. How would you rule and why? Do you think these issues should be decided at a national or local level? How do you see your decision affecting the architecture of Internet access over cable?

2. You have just read papers describing Nokia's Rooftop Networks. Imagine that you are: (a) a staff member at the FCC's Office of Engineering Technology responsible for spectrum management decisions; or (b) a lawyer for an industry group of wireless providers who have spent billions of dollars purchasing spectrum licenses at auctions in the past few years. Imagine that the FCC is considering whether the UHF bands, which will be released by television stations in 2006, should be auctioned off to providers of 3G wireless services or retained for a license-free spectrum. What would your arguments be about whether the spectrum should, or should not be auctioned?

3. Local exchange carriers often argued for regulatory parity. Why, they asked, is it fair to require them to provide their competitors in high-speed Internet access equal access to their facilities, without similarly requiring cable companies to do the same? This fairness objection could be resolved in one of two opposite ways. Cable companies could be required to offer competitors unbundled access to their broadband platform, or telephone companies could be relieved of their obligations. An argument in favor of relieving the telephone companies of their obligations is that having two wires in each home – the DSL provider and the cable provider – would suffice to assure that consumers benefit from competition, while leaving both telephone companies and cable operators enough incentives to make the huge investments necessary to bring broadband to the home. The presence of competitors who can free ride on the investments of the infrastructure owner at cost dampens incentives for investment in infrastructure. If, this argument goes, consumers value being able to access many Internet service providers, then either the telephone company or the cable company will likely open their system up to other ISPs as a competitive strategy against the other infrastructure owner, to capture those consumers who value choice of ISPs. The contrary argument is that neither cable nor telephone companies should be allowed to exclude competitors, and that there should be competition not only between two wires, but also within each, by regulating them so as to make space for any number of ISPs to compete with each other and with the infrastructure owner. Only thus, goes this argument, will we get enough competitors. These are precisely the questions that the FCC must face now, as it decides how to regulate the newly defined category of "information services" into which it has now put both cable broadband and DSL. What do you think?

4. The District Court in the Broward County case held that requiring a cable operator to open its network to competing providers violated AT&T's first amendment rights by forcing them to carry the speech of another. In response, public interest advocates have argued that open access is mandated by the first amendment because it requires enabling individuals and many diverse groups to speak. They contend that permitting a cable company to control Internet access over its infrastructure harms others’ speech. Which is the more persuasive argument?

5. One approach to building high-speed Internet access is to construct municipal networks. Chicago, for example, is working on what it calls CivicNet. Some municipalities are building on their existing network of sewers, working with a company called CityNet (Universal Access), which uses robots to pull fiber conduits through sewers to every home. Deployment has already begun in a number of U.S. cities, and the company is seeking contract to do the same elsewhere, beginning with a contract to pull fiber through the sewers of Vienna. Is this a solution to the Internet access problem? Is it appropriate for government to "compete" with private broadband infrastructure providers? Will it help or harm speech and innovation to have local governments owning broadband municipal networks?

6. The debate over Internet access and the precise architecture of the network and the market are really only the concern of a small privileged class, both nationally and internationally. The really important issue is distribution of access. With so many people on the planet lacking the most basic telecommunications facilities, it is much more important to make sure that more people get some Internet access than to spend all this political and regulatory energy on the precise details of how Internet access is configured. What do you think about this argument?

7. Should universal service impose an obligation on federal and local government to finance public provision of fiber optics and wireless spread spectrum devices for all? Dave Hughes argues that at least the E-Rate program should be usable as a public subsidy for purchasing wireless equipment for building an unowned infrastructure. What do you think?

8. The FCC recently removed the deferred open access requirements to future services combining Instant Messaging and cable broadband to deliver ‘advanced instant messaging’. Was the 3-2 majority correct in removing this future restriction, or should the Commission have waited for more conclusive market share data, as the dissenting opinion argues? Should the decision be seen an unfortunate step away from ensuring open access, or has competition from Microsoft and Yahoo! sufficiently dealt with concerns about monopoly power over advanced instant messaging? How does the assumed continuance of incompatibility of Instant Messaging services affect the viability of services built around instant messaging facilities, like Madster?

9. Lemley and Lessig contend, that: “If a regulated entity threatens to force the adoption of an architecture which is inconsistent with the Internet’s basic design, and if that action affects a significant portion of a relevant Internet market, then the burden should be on the party taking that action to justify this deviation from the Internet’s default design. The presumption should be against deviating from these principles….As with any principle, these presumptions should apply unless there is clear evidence that displacing them in a particular case would be benign.” Is it the proper role of regulation to adopt and support a particular architecture, even if it is open and conducive to innovation? Can policy afford to be otherwise, if Lemley and Lessig are correct in their predictions?

Additional Materials

Copper Wires & Telephones

LATA = Local Access and Transport Area

Stephen LaBaton, Appeals Court Favors Bells on Rates for Access . March 3, 2003, NY Times.

Eben Moglen, The Invisible Barbecue, 97 Columbia L. Rev. 945 (1997).

Notice of Inquiry Concerning High-Speed Access to the Internet over Cable and other Facilities

James Speta, Handicapping the Race for the Last Mile?: A Critique of Open Access Rules for Broadband Platforms, 17 Yale J. on Reg. 39 (2000).

Jim Wagner, Verizon DSL Reductions Prompt ISP Outrage. September 1, 2000, InternetNews.

Kevin Werbach, The Digital Tornado, OPP Working Paper, Series 29, 1997.

Coaxial Cable

Amicus Curiae Brief of the Federal Communications Commission, AT&T Corp. v. City of Portland, On Appeal from the United States District Court for the District of Oregon, No. 99-35609. (ONLY READ Point I of the Argument Section)

Patricia Aufderheide, The Threat to the Net, Metrotimes, February 2000.

Brand X Internet Services v. FCC , 345 F .3d 1120 (9th Cir. 2003).

Joel Garreau and Linton Weeks, Visions of a World That's Nothing but Net, Washington Post, January 11, 2000, at C1.

Peter S. Goodman Is it Cable or Is It Internet?, Washington Post, November 2, 1999.

Peter S. Goodman, AT&T Rivals Cautious on Cable Access, Washington Post, December 6, 1999.

Peter S. Goodman and Craig Timberg, AOL Ends Lobbying for Open Access, Washington Post, February 12, 2000.

Lawrence Lessig, Cable Blackmail, The Industry Standard, November 14, 1999.

Lawrence Lessig, The Cable Debate, Part II, The Industry Standard, November 14, 1999.

Shawn O’Donnell, Broadband Architectures, ISP Business Plans, and Open Access.

Jerome H. Saltzer, "Open Access" is Just the Tip of the Iceberg, October 22, 1999 FCC Cable Service Bureau Homepage for America Online, Inc. and Time Warner, Inc. Proposed Transfer of Control.

James Speta, The Vertical Dimension of Cable Open Access, 71 Colo. L. Rev. 975 (2000).

Tech Law Journal: Summary of AT&T v. City of Portland.

Wireless

Paul Baran, Visions of the 21st Century Communications: Is the Shortage of Radio Spectrum for Broadband Networks of the Future a Self Made Problem? Keynote Talk Transcript, 8th Annual Conference on Next Generation Networks Washington, DC, November 9, 1994,

Yochai Benkler, A Speaker’s Corner under the Sun in The Commodification of Information: Political, Social, and Cultural Ramifications (N. Elkin-Koren, N. Netanel, eds.). Kluwer, 2000.

FCC, Further NPRM & Order In Re: Amendment of Part 15 Regs. Regarding Spread

Morris, Jannotti, Kaashoek, et. al., CarNet, A Scalable Ad Hoc Wireless Network System

Spectrum Devices & Wi-LAN, Inc., May 11, 2001.

Kevin Werbach, Here's a Cure for Bandwidth Blues, ZDNet, Nov. 28, 2001.

Soft Infrastructure

AOL gets FCC nod on advanced instant-messaging, Reuters ( Washington), August 20, 2003.

François Bar, Islands in the Bit-Stream: Charting the NII Interoperability Debate, BRIE Working Paper, 79 (1995)

David S. Isenberg, Dawn of the Stupid Network

Hankland Kanellos and Wong, Sun, Microsoft settle Java suit CNET News.com, January 23, 2001.

FCC, Memorandum and Order, August 20, 2003.

Tony Kontzer, Time Warner/AOL Merger Conditions, Information Week January 2001.

Steven Weber, The Political Economy of Open Source Software, June 2000.

Barbara Darrow Wednesday, Instant Messaging Combatants Rail Against AOL, Techweb May 24, 2000

Universal Service

François Bar, and Annemarie Munk Riis, "Tapping User-Driven Innovation: A New Rationale for Universal Service", The Information Society, 16:1-10, 2000

Computer Professionals for Social Responsibility, Serving the Community: A Public Interest Vision of the National Information Infrastructure, 1996

FCC, E-Rate Program

FCC, Report to Congress on Universal Service, April 1998.

Adrian Herbst, Developing Public Telecommunication Systems.

President's Information Technology Advisory Committee, Digital Libraries: Universal Access to Human Knowledge, February 2001.

Ephraim Schwartz, Utilities, Municipalities Partner to Build Fiber Links, Infoworld, January 28, 2000

For more background see papers at: http://www.vii.org/afuniv.htm

Organizations

Open Source

IEEE

The Internet Society

Alliance for Community Media