Ranking Congressman Delivers Deadlines to AT&T, FCC For Cable Access Plan

Even while celebrating the principles behind AT&T's recent 'open access' declaration, Rep. Dingell points out weaknesses and contradictions in the company's positions.

by Patricia Fusco ISP-Planet Managing Editor [December 22, 2000]

Rep. John Dingell of Michigan, the most senior member of the House and ranking member of the Commerce Committee, sent a letter to FCC Chairman William E. Kennard and AT&T Corp. Chairman C. Michael Armstrong late last week.

In the letter to Kennard, Dingell questioned the FCC's vision and competence due to its failure to publicly scrutinize or even question, the cable industry's claim that no more than one ISP could operate on a single cable system. Dingell's letter to Kennard also included a copy of the Armstrong correspondence.

Dingell said that the FCC had failed in its charter to serve public interest when Kennard handpicked industry leaders to find a way to open-up closed cable systems.

Open process for open access
"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," Dingell said.

"In this instance, it appears that you personally handpicked a half-dozen individuals or entities and asked them to develop a means for providing consumers with cable open access," he added.

Dingell noted that the Commission delayed that billion-dollar SBC-Ameritech transaction until it gained SBC's agreement to conditions that included an immediate and concrete commitment to broadband open access. Such conditions have never been applied to AT&T's mergers with TeleCommunications, Inc. or MediaOne Goup, Inc.

Dingell said open access to cable systems is about both competition and consumer welfare, and that the FCC had about three months to take definitive action on the open access issue.

"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," Dingell said.

Techno/political about-face
In the correspondence to Armstrong, Dingell asked about AT&T's newly revised open access principles, which his company detailed in a letter of intent to Kennard on December 6.

Dingell said that the AT&T-Mindspring agreement raises important policy questions and concerns concerning shared access to AT&T's broadband cable systems. Dingle said that when he co-sponsored the broadband legislation bill H.R. 2420, he refrained from seeking open access on cable systems because AT&T claimed there were technological impediments to achieving shared access.

"Until recently, your company and others in the cable industry insisted that no more than one ISP could operate on a single cable system." Dingell wrote. "It now appears evident, from the principles submitted to Chairman Kennard, that at least AT&T has abandoned this technology argument, as well as a number of other technical and economic arguments used by the cable industry to oppose open access policies at all levels of government."

Dingell added that he welcomes AT&T's first step toward opening competition for high-speed cable services with other Internet Service Providers. However, he said that the principles must be considered together with the letters submitted by other participants in the process, noting that three of the original six participants chose not to sign the principles.

Dingell said the erosion of the technological argument against cable open access should advance the movement toward a marketplace solution for ensuring consumer choice. Instead, Excite@Home. withdrew from the discussions and Andrew J. Schwartzman of the Media Access Project refused to sign the agreement forthright.

Points of debate
Dingell wants to know specifically what the terms of transport are for MindSpring and other ISPs if deals can be negotiated to share access to AT&T's cable lants.

"What 'other terms' are contemplated by this provision, and why would such a negotiation with each individual ISP be necessary," Dingell asked. "For example, what requirements might AT&T seek to impose on an ISP desiring to reach a customer through a cable connection that an incumbent local exchange carrier would be prohibited from seeking or imposing on the same ISP for a DSL connection? With the technological impediments to multiple ISP access no longer a factor, what is the public policy basis for allowing such disparate regulatory treatment?"

Dingell noted that no part of AT&T's statement in principle appears to guard against discriminatory treatment by AT&T between and among ISPs.

"In what ways does AT&T contemplate being able to treat various ISPs differently," Dingell asked Armstrong.

Dingell also questioned why AT&T's chief insisted that ISPs use their transport facilities all the way to the Internet backbone.

"Why should an ISP that owns or has a long-term lease for transport facilities, or that may have built its own regional node at another location, be required to use AT&T's transport facilities to the extent your company suggests?" Dingell asked.

Dingell said that if those are the terms for cable transport with AT&T, what terms does AT&T contemplate offering ISPs for the use of the backbone itself?

Lingering doubts
"Why should the Members of this Committee not be concerned that AT&T will merely use open access at the customer level as a device for increasing concentration in the backbone market," Dingell asked.

Dingell added that because the cable transport project with MindSpring is delayed until mid-2002 due to AT&T's exclusive contract with Excite@Home, he was concerned about how AT&T would use the time interval to secure a base of customers who have no choice for cable Internet services.

Dingell asked that Armstrong respond to his questions before the close of business on Friday, December 24.

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