In the Matter of

Inquiry Concerning High-Speed
Access to the Internet Over
Cable and Other Facilities

GN Docket No. 00-185

Jerry Berman
Alan Davidson
Paula Bruening
CENTER FOR DEMOCRACY & TECHNOLOGY
1634 Eye Street NW, Suite 1100
Washington, D.C. 20006
(202) 637-9800

Dated: December 1, 2000

TABLE OF CONTENTS

1. Executive Summary
2. Comments of the Center for Democracy & Technology
3. Exhibit 1: "Broadband Backgrounder: Public Policy Issues Raised By Broadband Technology," by the Broadband Access Project of the Center for Democracy & Technology
4. Exhibit 2: Checklist of Essential Elements for Effective Third-Party Access
5. Exhibit 3: "The Broadband Internet: The End of the Equal Voice?," by Jerry Berman and John B. Morris, Jr.

EXECUTIVE SUMMARY

Openness, the hallmark of the narrowband Internet, is central to the development of the Internet as a dynamic and democratic communications medium. Through its openness and decentralization, the Internet makes it possible for anyone to be a publisher and to reach millions of listeners worldwide simply and inexpensively. The narrowband Internet's low barriers to entry allow nearly anyone to be an Internet Service Provider and to participate in the global network on an equal par with others. The broad availability of the Internet gives businesses, nonprofit organizations and individuals the unprecedented ability to speak, and allows listeners to receive content, free from governmental or private interference. As Judge Stewart Dalzell of the United States District Court for the Eastern District of Pennsylvania stated in ACLU v. Reno, "the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers."

As Internet technology shifts to broadband architecture, decisions about access are critical to preserving this democratizing, empowering character. Openness must be maintained if the Internet is to continue to function as a powerful communications medium for diverse speakers. The Internet is now on the threshold of a transformation from the narrowband world of dial-up modems and slow content delivery speeds to the broadband world of cable modems, DSL, wireless, and other technologies that deliver high-speed Internet access. This transition threatens the fundamental characteristics that have made the narrowband Internet what it is today. Openness could disappear in the broadband world, potentially transforming the Internet into a mass medium dominated by corporate and media interests.

The Center for Democracy and Technology is committed to preserving the open character of the Internet. From the outset, CDT helped define the vision of the Internet as a uniquely user-controlled, decentralized, democratic medium. CDT was at the forefront of the legal challenges to the Communications Decency Act and framed the legal strategy that culminated in the Supreme Court's landmark decision in Reno v. ACLU extending to Internet speech the highest level of constitutional protection. Since then, CDT has been instrumental in educating policymakers about the empowering potential of an open, accessible Internet.

The open character of the Internet is so critical that unless private industry acts immediately to open their systems, the Commission must act to require openness. Voluntary industry efforts toward achieving verifiable openness have not, to date, been successful. CDT has always been a very strong advocate of attempting to address policy problems on the Internet through voluntary action. Implementation of third party access (or "open access"), however, is too important to be delayed by industry indecision about a definition of open access or about how to implement it. CDT urges the FCC to publicly embrace third party access and set a clear deadline by which its implementation must be complete. Failing its implementation by some time in the year 2001, the FCC should act to require open access.

Whether open access is achieved through voluntary action or government mandate, it is critical that the Commission adopts a clear and understandable definition of openness or open access. To aid the Commission in this endeavor, CDT has prepared � based on its year-long Broadband Access Project � a checklist of what CDT believes are the essential elements of openness and third party access. See pages 15-16 below and Exhibit 2. The critical elements of the checklist are (a) users' unfettered access to content and content delivery technologies, (b) users' choice of Internet Service Providers ("ISPs"), and (c) ISPs' ability to offer access service over a broadband facility on non-discriminatory terms and technical conditions.

The importance of the free speech values at stake dictate that decisions about third party access be informed by the public interest. The FCC must act to involve the public interest in determining and implementing the details of open access. Without public involvement, decisions about access to broadband technology will undoubtedly be made in private negotiations between large corporate interests, negotiations in which public concerns are not considered and in which the views of those most able to benefit by the rough parity of created by openness would be excluded. CDT urges the FCC to take immediate steps to create and implement a process for decision-making about open access that enables robust public representation and participation.

COMMENTS OF THE CENTER FOR
DEMOCRACY & TECHNOLOGY

The Center for Democracy & Technology ("CDT") respectfully submits these comments to the Federal Communications Commission ("FCC") in response to the FCC's Notice of Inquiry ("NOI"), In the Matter of Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, GN Docket No. 00-185. CDT's comments in this submission are based in large part on the work it undertook in its Broadband Access Project, an objective assessment of the factual and public policy issues raised by emerging broadband delivery technologies.

CDT is a non-profit, public interest organization dedicated to developing and implementing public policies that preserve civil liberties and democratic values on the Internet. It has helped define the vision of the Internet as a user-controlled, decentralized, democratic medium. From the outset, CDT has worked to preserve the Internet's open character and was at the forefront of efforts to establish and protect the very high level of constitutional protection that speech on the Internet has been afforded by the United States Supreme Court in the ACLU v. Reno decision. CDT led the coalition that brought the Internet into the courtroom in Philadelphia in that case. Since then, CDT has educated policymakers about the potential of an open, accessible Internet. CDT initiated the Broadband Access Project to ensure that the open and democratic characteristics of the narrowband Internet � so central to the Reno decision � are carried over into the emerging broadband world. The findings of the Broadband Access Project are summarized in a "Broadband Backgrounder," a copy of which is attached hereto as Exhibit 1.

The objective findings of CDT's Broadband Backgrounder address many of the issues and arguments on which comments are sought by the NOI. In Part I of these Comments, CDT provides a cross-reference to the Broadband Backgrounder, highlighting the issues of interest to the Commission. In Parts II through V of these Comments, CDT moves beyond a neutral assessment and offers its own conclusions about how policy makers should address the "third party access" or "open access" to cable systems issue, and more generally what the Internet industry must do to ensure the preservation of the fundamental characteristics that make the Internet a unique and dynamic means of communication. Specifically, CDT argues:

1. Openness" is a central characteristic of the narrowband Internet, and one that must be maintained and implemented in the broadband world. (Part II)
2. Voluntary industry action is the most desirable way to achieve "openness," but has to date failed to achieve verifiable openness. Unless private industry acts immediately to "open" their systems in a meaningful and verifiable way, the Commission should step in to require openness. (Part III)
3. Critical to any assessment of openness (whether by voluntary action or government mandate) is a clear definition of what openness means. CDT articulates a checklist of the essential elements for openness, to be used to assess whether any facility can be considered "open." (Part IV)
4. For any openness or third party access regime (whether voluntary or mandated) to succeed, a method and forum to represent and protect the public interest must be put in place. Such a method or forum is necessary to ensure the implementation of openness and third party access and that vital characteristics of the narrowband Internet are carried into the broadband world. (Part V)

For the Internet to continue to grow and evolve as it has since its origins, the ability of all users to speak and be heard over the Internet must be protected.

I. CDT'S NEWLY ISSUED "BROADBAND BACKGROUNDER" ADDRESSES MANY OF THE ISSUES RAISED BY THE NOI.

CDT's Broadband Backgrounder (attached as Exhibit 1 and hereafter referred to as "the Backgrounder") provides a detailed and impartial overview of the public policy issues and arguments concerning broadband access to the Internet, including but not limited to third party access to cable systems. The Backgrounder is intended to familiarize policymakers with the full range of public policy issues relating to broadband, with a particular focus on the third party access to cable issues.

The Backgrounder first provides a historic and technical overview of the development of the Internet. It reviews how people use the Internet and the revolutionary and empowering impact of inexpensive and unrestricted Internet communications. The Backgrounder then analyzes the history of regulation (and lack of regulation) and its effect on the development of the Internet. The Broadband Backgrounder next provides an overview of new broadband technologies and the likely uses of broadband in the future. It then briefly summarizes the broad range of public policy issues that have arisen concerning broadband technologies. Finally, the Backgrounder provides a detailed analysis of the issues and arguments raised relating to third party access to cable systems.

Numerous issues raised by the Commission in its Notice of Inquiry are addressed by the Backgrounder. The following are the most significant questions raised in the NOI and addressed by the Backgrounder:

1. NOI �� 11, 42 � FCC "regulatory restraint": Contrary to both the general truism that the "Internet is not regulated" and the specific claims by the Commission that it has refrained from regulation, the Broadband Backgrounder, after analyzing the history of FCC regulation of the Internet and the facilities on which it operates, concludes that the Internet significantly benefited from direct and arguably onerous regulation of facilities owners, i.e., local telephone carriers. Although Internet service is not regulated (and should not be), the means by which most people have accessed the Internet is subject to significant regulations. See Broadband Backgrounder, Section I.F, pages 10-15.
2. NOI �� 15-19 � Classification of cable modem service as "cable service" or "telecommunications service": The Backgrounder briefly reviews the arguments on both sides of this issue and the Ninth Circuit's decision in the Portland case, and concludes that cable modem service is most appropriately viewed as a telecommunications service. See Broadband Backgrounder, Section IV.A, pages 38-44.
3. NOI �� 26-31 � Definition of "Open Access": The Backgrounder looks closely at the "open" characteristics of the narrowband Internet and their importance in the dynamic development of the Internet. See Broadband Backgrounder, Sections I.D � I.E, pages 6-9. Part IV of these Comments of CDT, below at pages 38-71, also directly identifies in specific detail the elements that should be required for a system to be considered "open." CDT argues that there must be a clear and detailed definition of what open access really is, so that the industry, the Commission, and other policy makers may consistently evaluate claims of "openness."
4. NOI �� 32-33 � Desirability of "Open Access" as a policy goal: The Backgrounder assesses the desirable features of the narrowband Internet that should be carried, as much as possible, to the broadband Internet. See Broadband Backgrounder, Sections I.D � I.E, pages 6-9. Part II of these Comments of CDT, below at pages 16-28, further address the desirability of "open access." CDT concludes that openness is vital to the broadband Internet and that third party access is essential to ensuring that that openness is achieved.
5. NOI �� 35-40 � Desirability and viability of continued reliance on market forces: Although not subjectively evaluated in the Broadband Backgrounder, Part III of these Comments of CDT, below at pages 29-37, argues that in the first instances voluntary market effort is a more desirable way to achieve open access. As detailed below, however, CDT and its Broadband Access Project engaged in a concerted and lengthy effort to encourage voluntary acceptance and implementation of third party access. Although a few major market players have made significant steps towards openness, none of the major players has been willing to agree to any specific and measurable definition of open access. In the absence of clear and immediate steps by the entire industry to embrace open access, CDT believes the FCC should act to require third party access. See Part III below.
6. NOI �� 41-42 � Harm arising from a failure to mandate third party access: The Broadband Backgrounder reviews arguments raised by proponents of mandated third party access, and concludes that there is (a) a theoretical but cognizable risk of content censorship in the absence of mandated open access, and (b) an already realized risk of content discrimination regarding the speed of delivery. The Backgrounder addresses other arguments as well. See Broadband Backgrounder, Section IV.G, pages 61-65.
7. NOI �� 41-42 � Harm arising from mandating third party access: The Backgrounder reviews a number of arguments raised by cable interests and other opponents of mandated third party access, and concludes that there is (a) little risk that cable companies will not upgrade there systems in the face of a mandated third party access requirement, (b) little risk that broadband deployment would be dramatically delayed by mandated third party access, but (c) significant risk that any third party access mandate would face regulatory and litigation hurdles similar to those encountered in the area of local telephone competition. The Backgrounder addresses other arguments as well. See Broadband Backgrounder, Section IV.H, pages 65-71.
8. NOI �� 47-49 � Technical and operational issues associated with third party access: The Broadband Backgrounder briefly reviews the evidence that third party access is technically feasible, but also considers the very challenging technical concerns that arise because the cable plant is inherently a shared resource. The Backgrounder concludes that there may be legitimate grounds for a cable operator (or network manager under contract with a cable operator) to impose restrictions on the use of cable modem service. See Broadband Backgrounder, Section IV.E, pages 55-60.

Beyond those issues mentioned above, the Broadband Backgrounder discusses a range of other issues more generally related to broadband access to the Internet. In particular, the Backgrounder, and in a separate more detailed paper , consider the very significant threats to the narrowband Internet's historic openness and equality among speakers that arise from the emerging distributed content model for broadband content. This model, popularized by Akamai Technologies and other leading companies, calls for broadband and other content to be pushed out to the "edge of the network." These changes, while significantly enhancing the speed of delivery for broadband content, also significantly reduce the ability of smaller and less well financed speakers to compete in the Internet marketplace of ideas. Although this issue is not one the Commission will likely address in the current proceeding, it is a serious issue that should influence how the Commission views the broadband Internet.

II. OPENNESS IS CENTRAL AND ESSENTIAL TO PRESERVING THE DYNAMIC CHARACTER OF THE INTERNET.

In the first comprehensive assessment of the Internet by an American court, the trial court in ACLU v. Reno found what it called "a unique and wholly new medium of worldwide human communication." The narrowband Internet developed into this dynamic medium in large part because it is "open" -- the "network of networks" uses open and freely available technical standards, allowing literally millions of different (and often incompatible) computers to communicate seamlessly. The open Internet traffic protocols allow startup companies and individual software designers to create and distribute new modes of communication over the Internet. Speakers, large and small, rely on the openness of the Internet to speak easily, inexpensively, and without significant restriction or limitations on the form or content of the speech.

As one judge put it, the "Internet is a far more speech-enhancing medium than print, the village green, or the mails." That judge concluded that "[f]our related characteristics of Internet communication have a transcendent importance" to the conclusion that the Internet deserves the highest levels of constitutional protection:

First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers.

The relative parity created by the Internet among speakers has powerful consequences. This rough parity makes it possible for smaller, start-up Web sites to offer content just as flashy and current as the largest corporate speaker does. This rough "equality of voice" makes the Internet unique among means of mass communications � for the first time, individual and small speakers and publishers can speak to vast numbers of listeners, and can do so with content competitive with that of the largest speakers. An individual critical of a corporation, for example, can post a web page with just as much impact as that posted by the corporation itself. Moreover, this rough equality of voice can be achieved for a very small amount of money � individuals can post personal web pages for little or no cost, and a web site with a unique domain name can be hosted with very little investment.

The openness of the narrowband Internet also translates into an unprecedented ability of speakers to speak and listeners to receive content, free from governmental or private interference. Internet users have a wide range of choices as to how to access the Internet and what to do with the communications medium once online. Users can speak to the entire world at little cost. Listeners can access a vast wealth of content quickly and easily, without significant governmentally- or privately- imposed limitations. In short, the Internet offers individuals, communities, non-profit organizations, companies, and governments an unprecedented ability to speak and be heard.

The telephone system that enables this open, narrowband Internet operates subject to full common carrier obligations. Thus, Internet Service Providers (ISPs), with very little capital investment, can offer services within a community, free from interference by the telephone company that provides the "last mile" connection to the ISP's customers. Internet users, in turn, can easily reach any of a community's often hundreds of ISPs, and can do so without facing any telephone-company-imposed restrictions (other than bandwidth limitations inherent in an analog telephone line). The common carrier requirements in the telephone system have led to great diversity among ISPs, and to significant competition and innovation among Internet service providers.

From this openness and diversity (some the result of standards setting processes and some the result of affirmative regulation of the underlying telecommunications facility) has emerged the most democratic and dynamic form of mass communications ever created. Never before could speakers reach so many potential listeners with so little expenditure. Never before have smaller and unfunded speakers experienced such rough parity with large and well-financed speakers. And although the narrowband Internet still bypasses many potential speakers in the United States (and many, many more across the world), it is the closest thing that we have had to a ubiquitously available, far reaching method of communication. And its importance as a means of communications is only expected to increase over time.

As Internet technology shifts to broadband, it moves away from the mandated openness of common carriage, under which telephone companies are required to offer services to all potential customers. Although broadband service over the telephone network � in the form of Digital Subscriber Line, or DSL, service � will likely be a significant avenue to obtain broadband access to the Internet, regulatory differences and technical constraints dictate that new or small ISPs will not be able to break into the DSL market as easily and cheaply as those same ISPs were able to offer dial-up service to their customers.

For the foreseeable future, it appears likely that broadband Internet access will most often be delivered over cable networks. Common carriage requirements do not apply to cable operators, who are thus not required to provide users access to multiple ISPs and the diversity of Internet service options they offer.

These and other critical differences between narrowband and broadband raise the very real possibility that the open, dynamic, and democratic Internet might come to be dominated and in part controlled by a small number of private companies that own the critical "last mile" connection into users' homes. These concerns have led to the often-bitter debate over whether cable systems should be forced to permit unaffiliated ISPs to offer broadband services over their cable facilities.

After examining these concerns in the Broadband Access Project, CDT concluded that (A) "open" access will continue to be critical to the development of broadband Internet access, and that (B) such openness should be implemented across and within the facilities that provide broadband "last mile" connections into the home.

These broader conclusions are based on a the following findings:

1. Barriers to entry to narrowband Internet are low. The largely unrestricted ability of ISPs and their customers to obtain "last mile" access over common carrier telephone companies has significantly contributed to the diversity and "openness" of today's narrowband Internet. The dial-up Internet access market has had very low economic and regulatory barriers to entry, and this in turn has led to a wide diversity in the types of service providers and services available to Internet users.
2. There are no restrictions on use of narrowband connection. An Internet user's use of a narrowband dial-up Internet connection was not restricted (except by the maximum speed copper wires can support) by the common carrier telephone company providing "last mile" access. Along with the low barriers to entry, these characteristics of the narrowband Internet world maximize opportunities for technical experimentation, innovation, and democratic dialogue.
3. ISPs have very little practical ability to stifle innovation or control content on the narrowband Internet. Because of the low barriers to entry and the lack of restrictions on the use of Internet access, most narrowband Internet users have multiple choices for ISP. Because of the competition between ISPs and the relatively low cost for users to change ISPs, ISPs have very little practical ability to stifle innovation or censor or control the content that users access over the Internet. Except where the business model of the ISP is to provide filtered access to the Internet, ISPs would be very unlikely to restrict Internet access in any significant way.
4. Barriers to entry in broadband Internet are high. The level of investment required for an ISP to offer broadband services is higher than that needed to offer narrowband services. This has the potential to dampen competition among ISPs and innovation by ISPs in the types of service that they offer.
5. Facility owners impose greater restrictions on use of broadband access. In contrast to the narrowband world, many broadband users (particularly those using cable modems) are restricted in the types of applications they can operate over their broadband connection. Facility owners restrict almost all cable modem services and most consumer-oriented DSL services from operating a "server" (such as a web server) over the "last mile" connection.
6. There is a lower likelihood of competition, and higher risk of content control, with broadband access: The higher barriers to entry and the lower flexibility in how "last mile" access is used will likely lead to lower levels of competition in the broadband area, and this in turn could increase the risk that a favored ISP or a facility owner could stifle innovation or attempt to censor or control content over the Internet.
7. Broadband Internet may limit users' options to access to alternate Internet facilities: In some communities, three or even four separate facilities may compete to offer broadband access. In many communities, however, users will have only one � or at most two � broadband facilities available, so that competition must exist between different access facilities, and within a single access facility.

Based on its analysis of the competing arguments concerning an open access requirement, CDT has concluded that open access is a critical characteristic of the narrowband Internet, and that this characteristic must be carried over to the broadband Internet to the maximum extent possible. There must be � again to the maximum extent possible � competition between different broadband "last miles" into the home, and competition among ISPs within each of the leading broadband facilities.

III. ALTHOUGH VOLUNTARY INDUSTRY ACTION IS PREFERABLE, THE COMMISSION SHOULD ACT IF THE INDUSTRY FAILS TO EMBRACE IMMEDIATELY A COMPREHENSIVE CONCEPT OF OPEN ACCESS AND A CONCRETE AND EXPEDITED PLAN FOR IMPLEMENTATION.

For the first eighteen months of the open access debate, cable industry leaders uniformly resisted calls that they permit unaffiliated ISPs to offer service over their "last mile" broadband facilities. Many advocates opposing "open access" asserted that such multiple ISP support was not technically possible or would deter investment in cable plant upgrades. Cable operators also asserted strongly that any government-imposed open access requirement would create a regulatory morass similar to the federally mandated opening of local telephone markets to competition.

Whatever their original validity, most of these arguments are no longer tenable. At least four of the leading cable MSOs (multiple system operators) have publicly announced their intention to open their networks (to varying and as yet unclear extents). The key remaining questions are (a) what in fact does "open access" or third party access mean, (b) are the cable operators willing to comply with such a definition, (c) when, and (d) will open access be implemented voluntarily or under government mandate. In its analysis of the cable access issues, CDT concluded that the cable systems were correct in asserting that a government-mandated "open access" requirement would likely lead to complicated regulatory actions and likely legal challenges.

CDT has always been a very strong advocate of attempting to address policy problems on the Internet through voluntary action. Through its Broadband Access Project, CDT worked very hard to promote such voluntary action in the third party access area, and to encourage direct dialog among the leading market participants (on all sides of the issues) and public interest advocates (also on various sides of the issues). Throughout the fall and winter of 1999/2000, the Project sought to forge a consensus on, at a minimum, a definition of what "open access" really means. Although the Broadband Access Project made significant progress to that end (the results of which formed the basis of Part IV of these Comments), CDT was unable to achieve broad agreement about definitions.

During this time, a number of market leaders announced their commitment to open access as they chose to define it. Although it acknowledged that these commitments were a significant step forward, the Broadband Access Project was still unable to forge any consensus on what elements are essential to open access. Based on CDT's experience to date, CDT is frankly doubtful that many if any of the leading market players will, if left to their own devices, ever voluntarily agree on what open access means and how to implement it. Of course, definitional consensus might not be necessary if all of the leading providers would make the same basic commitments on their own. At this point, however, there are far more outstanding questions than answers about the companies' voluntary approach to open access. It is doubtful that the companies will ever be able to agree voluntarily on how to implement open access.

Notwithstanding CDT's initial preference to encourage voluntary efforts to implement open access, CDT believes that implementation is too important to be delayed. CDT urges the FCC to publicly embrace open access and set a clear deadline by which the implementation of open access must be complete. Failing clear steps toward open access within months, and implementation of open access by some point in the year 2001, the FCC should act to require open access.

CDT believes that a failure to achieve open access would undermine the empowering and democratizing character of the Internet. This character is so vitally important that absent clear and verifiable evidence that industry efforts are in fact achieving openness, the government should act.

IV. AN OPEN ACCESS CHECKLIST.

Whether open access is achieved through voluntary action or government mandate, it is critical that the Commission adopt a clear and understandable definition of openness or open access. To aid the Commission in this endeavor, CDT has prepared � based on its year long Broadband Access Project � a checklist of what CDT believes are the essential elements of openness and third party access. A "stand alone" version of this checklist is attached as Exhibit 2 to these Comments.

The following table of questions is intended as a tool to help the Commission and policymakers evaluate whether broadband access offered over a given communications facility can be considered "open" in the same way that the narrowband, dial-up Internet is generally considered to be open and competitive. The results should allow the Commission to focus its attention vis-a-vis a particular communications facility to areas where openness is lacking. The questions should also enable policymakers to make reasonable comparisons of openness across different broadband technologies. The questions are presented in two groups, first from the perspective of an individual Internet user, and then from the perspective of an Internet Service Provider seeking to offer broadband service.

There is no scoring formula or fixed number of check marks to indicate that a communications facility as "open." Generally, a check mark (√) indicates that a facility is open in a particular aspect. An X mark (r) indicates that a facility is not open, and that policymakers should carefully scrutinize the nature of the facility's policies or capabilities in a particular area. A star (Q) indicates that a facility is not fully open, but may be as open as possible given technical realities. As with an X mark, policymakers should carefully scrutinize the nature of the facility's policies or capabilities in areas marked with a star.

The checklist uses the following definitions:

The term "facility owner" refers to the communications company that installed and/or owns the underlying physical equipment that provides a way to deliver broadband Internet service to individual users. This term would include, for example, a local telephone or cable company.

The term "Internet Service Provider" or "ISP" refers to the company that provides the connection between the underlying communications facility and the Internet. These terms would include, for example, America Online, Earthlink, and @Home. ISPs can be owned by or affiliated with a facility owner, or can be independent and unaffiliated.

The term "Internet user" refers to any user or consumer of retail Internet services, whether that user is an individual, a small business, or other entity.

#	QUESTION		EVALUATION	√ * X
Openness from the perspective of the individual Internet user
1.	Can the Internet user access and receive any lawful content on the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise enter an X.
2.	Can the Internet user speak and post any lawful content to the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise enter an X.
3.	Can the Internet user utilize any generally available content delivery technology (such as streaming audio or video applications) to access and receive content on the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise leave blank and proceed to Questions 3a.
3a.		If "No" to Question 3, are any restrictions on use (a) applied equally to all users and all ISPs using the broadband facility, (b) based on reasonable technical and engineering concerns, and (c) narrowly drawn to constrain only those uses that raise technical and engineering concerns?	If "Yes" enter a *, otherwise enter an X.
4.	Can the Internet user use any generally available Internet technology (such as web servers) to deliver content to the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise leave blank and proceed to Questions 4a.
4a.		If "No" to Question 4, are any restrictions on use (a) applied equally to all users and all ISPs using the broadband facility, (b) based on reasonable technical and engineering concerns, and (c) narrowly drawn to constrain only those uses that raise technical and engineering concerns?	If "Yes" enter a *, otherwise enter an X.
5.	Can the Internet user access the Internet without first accessing a "start page" or initial screen controlled or required by the broadband facility owner?	If "Yes" enter a √, otherwise enter an X.
6.	Can the Internet user choose from a variety of service plans offered by a variety of ISPs, including both local and national ISPs?		If "Yes" enter a √, otherwise enter an X.
7.	Can the Internet user obtain service from an ISP that is not affiliated with the facility owner without also having to purchase Internet service from an ISP that is affiliated?		If "Yes" enter a √, otherwise enter an X.
8.	Are research or development efforts under way to reduce or eliminate any restrictions identified in Questions 3 and 4 above?		If "Yes" enter a √, if no restrictions were identified leave blank, otherwise enter an X.
Openness from the perspective of the Internet Service Provider (ISP)
9.	Does the facility owner permit unaffiliated ISPs to offer Internet service over the owner's broadband network?		If "Yes" enter a √, otherwise enter an X.
10.	Does the facility owner limit the number of ISPs that can offer service over the broadband network?		If "No" enter a √, otherwise leave blank and proceed to Questions 10a and 10b.
10a.		If "Yes" to Question 10, is the limit exclusively based on legitimate technical limitations on the number of ISPs supportable on the network?	If "Yes" enter a *, otherwise enter an X.
10b.		If "Yes" to Question 10, are research and development efforts under way to reduce or eliminate the limits?	If "Yes" enter a *, otherwise enter an X.
11.	Can an unaffiliated ISP contract with the facility owner for access to Internet users on essentially the same financial terms as are given to an affiliated ISP for similar access?		If "Yes" enter a √, otherwise enter an X.
12.	In terms of speed of access, technical functionality, and ability to offer service to customers, does an ISP affiliated with the facility owner have any advantages over an unaffiliated ISP?		If "No" enter a √, otherwise enter an X.
13.	In terms of operational support systems and the procedures and timetable used to offer service to new customers, does an ISP affiliated with the facility owner have any advantages over an unaffiliated ISP?		If "No" enter a √, otherwise enter an X.
14.	Does the facility owner require ISPs to use any equipment or services of the facility owner (such as Internet transport services) beyond those essential to the Internet access service itself?		If "No" enter a √, otherwise enter an X.
15.	Can an unaffiliated ISP establish a direct vendor-customer relationship with the ultimate Internet user?		If "Yes" enter a √, otherwise enter an X.
16.	Can an unaffiliated ISP initiate the process of establishing service to an Internet user, such that the ISP can permit a new user to establish service via a single request to the ISP (avoiding any need for the user to also contact the facility owner)?		If "Yes" enter a √, otherwise enter an X.

V. THE FCC MUST INVOLVE THE PUBLIC INTEREST IN DECISIONS CONCERNING ASSURING OPEN ACCESS.

The FCC ensures the representation and involvement of the public interest in determining and implementing the details of open access. Absent FCC action to involve the public, decisions about access to broadband Internet technology will be made in closed-door, private, commercial negotiations that will not reflect the public interest. The Internet industry has frequently sought to exclude government, and to solve problems without governmental mandate. In most situations, this voluntary approach is desirable (and indeed, is actively promoted by CDT), but for it to succeed when free speech and the First Amendment are at stake, the public interest must be reflected in the network and infrastructure design decisions. Values of free speech will not in every instance coincide with the goals and values pursued by private parties. Simply put, free speech is too important to leave solely in the hands of private industry.

CDT believes that a process involving policymakers, the public interest community, and the Internet industry must be created to monitor the implementation of open access, and to ensure that the public has an effective voice in that implementation. While CDT's comments in this response to the FCC's Notice of Inquiry focus on cable modem access, the process CDT proposes could involve monitoring open access across broadband platforms as they are rolled out, to assure that open access becomes ubiquitous.

Such a process cannot be limited to the open marketplace � it is not enough that members of the public can express preferences with their feet and their pocketbooks. When free speech is at issue, it is very often precisely those that lack money, numbers, or market power in general, that most need protection. Often, the mass of citizenry would be perfectly happy to limit a particular type of expression protected by the First Amendment, but that expression is nevertheless protected. It is precisely this type of freedom and openness � in which small, underfunded, and sometimes disfavored speakers can nevertheless speak � that makes the Internet the unique and dynamic communications medium that it is today. Moreover, it is precisely this type of freedom and openness that is at risk as the Internet moves to a broadband world.

The traditional pre-Internet approach to addressing this kind of policy question involved government oversight. In the pre-Internet world, the FCC or another arm of government was cast in the role of protector of the individual citizen. That protection often focused on consumer protection, but it also includes protection of free speech and the open availability of information and resources for citizens. The Internet, however, has successfully evolved free of extensive involvement by government forces, and many believe that the government is ill suited to any significant regulation of the Internet. Making determinations affecting free speech on the Internet, however, requires a new process that protects and furthers the public interest, one that empowers the public to participate in and influxes the decisions and actions of private industry.

Rather than act in an oversight capacity, the FCC's most effective role in addressing the issue of open access is the creation and implementation of a new mechanism for decision-making that involves robust representation and participation by the public interest.

VI. CONCLUSION

If the Internet is to continue to evolve and develop as an empowering, democratizing medium of communications, it is imperative that we maintain its open character as technology shifts to broadband. Private industry must act immediately to open their systems, and absent industry action, the Commission must step in to assure open access. If open access is to be achieved in a consistent, verifiable way, it is critical that a clear, understandable definition of open access be articulated. CDT proposes a checklist of the essential elements for open access, to be used to assess whether any facility can be considered open. Finally, a process or forum must be implemented that protects and represents the public interest and assures that vital characteristics of the narrowband Internet are carried over into the broadband world. For the Internet to continue to grow and evolve as it has since its origins, the ability of all users to speak and be heard must be protected.

EXHIBIT 1

"Broadband Backgrounder: Public Policy Issues Raised By Broadband Technology" by The Broadband Access Project of the Center for Democracy & Technology

EXHIBIT 2

Checklist of Essential Elements for Effective Third-Party Access

This checklist uses the following terms

The term "facility owner" refers to the communications company that installed and/or owns the underlying physical equipment that provides a way to deliver broadband Internet service to individual users. This term would include, for example, a local telephone or cable company.

The term "Internet Service Provider" or "ISP" refers to the company that provides the connection between the underlying communications facility and the Internet. These terms would include, for example, America Online, Earthlink, and @Home. ISPs can be owned by or affiliated with a facility owner, or can be independent and unaffiliated.

The term "Internet user" refers to any user or consumer of retail Internet services, whether that user is an individual, a small business, or other entity.

#	QUESTION		EVALUATION	√ * X
Openness from the perspective of the individual Internet user
1.	Can the Internet user access and receive any lawful content on the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise enter an X.
2.	Can the Internet user speak and post any lawful content to the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise enter an X.
3.	Can the Internet user utilize any generally available content delivery technology (such as streaming audio or video applications) to access and receive content on the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise leave blank and proceed to Questions 3a.
3a.		If "No" to Question 3, are any restrictions on use (a) applied equally to all users and all ISPs using the broadband facility, (b) based on reasonable technical and engineering concerns, and (c) narrowly drawn to constrain only those uses that raise technical and engineering concerns?	If "Yes" enter a *, otherwise enter an X.
4.	Can the Internet user use any generally available Internet technology (such as web servers) to deliver content to the Internet, free from any limitation imposed by the broadband facility owner?		If "Yes" enter a √, otherwise leave blank and proceed to Questions 4a.
4a.		If "No" to Question 4, are any restrictions on use (a) applied equally to all users and all ISPs using the broadband facility, (b) based on reasonable technical and engineering concerns, and (c) narrowly drawn to constrain only those uses that raise technical and engineering concerns?	If "Yes" enter a *, otherwise enter an X.
5.	Can the Internet user access the Internet without first accessing a "start page" or initial screen controlled or required by the broadband facility owner?	If "Yes" enter a √, otherwise enter an X.
6.	Can the Internet user choose from a variety of service plans offered by a variety of ISPs, including both local and national ISPs?		If "Yes" enter a √, otherwise enter an X.
7.	Can the Internet user obtain service from an ISP that is not affiliated with the facility owner without also having to purchase Internet service from an ISP that is affiliated?		If "Yes" enter a √, otherwise enter an X.
8.	Are research or development efforts under way to reduce or eliminate any restrictions identified in Questions 3 and 4 above?		If "Yes" enter a √, if no restrictions were identified leave blank, otherwise enter an X.
Openness from the perspective of the Internet Service Provider (ISP)
9.	Does the facility owner permit unaffiliated ISPs to offer Internet service over the owner's broadband network?		If "Yes" enter a √, otherwise enter an X.
10.	Does the facility owner limit the number of ISPs that can offer service over the broadband network?		If "No" enter a √, otherwise leave blank and proceed to Questions 10a and 10b.
10a.		If "Yes" to Question 10, is the limit exclusively based on legitimate technical limitations on the number of ISPs supportable on the network?	If "Yes" enter a *, otherwise enter an X.
10b.		If "Yes" to Question 10, are research and development efforts under way to reduce or eliminate the limits?	If "Yes" enter a *, otherwise enter an X.
11.	Can an unaffiliated ISP contract with the facility owner for access to Internet users on essentially the same financial terms as are given to an affiliated ISP for similar access?		If "Yes" enter a √, otherwise enter an X.
12.	In terms of speed of access, technical functionality, and ability to offer service to customers, does an ISP affiliated with the facility owner have any advantages over an unaffiliated ISP?		If "No" enter a √, otherwise enter an X.
13.	In terms of operational support systems and the procedures and timetable used to offer service to new customers, does an ISP affiliated with the facility owner have any advantages over an unaffiliated ISP?		If "No" enter a √, otherwise enter an X.
14.	Does the facility owner require ISPs to use any equipment or services of the facility owner (such as Internet transport services) beyond those essential to the Internet access service itself?		If "No" enter a √, otherwise enter an X.
15.	Can an unaffiliated ISP establish a direct vendor-customer relationship with the ultimate Internet user?		If "Yes" enter a √, otherwise enter an X.
16.	Can an unaffiliated ISP initiate the process of establishing service to an Internet user, such that the ISP can permit a new user to establish service via a single request to the ISP (avoiding any need for the user to also contact the facility owner)?		If "Yes" enter a √, otherwise enter an X.

EXHIBIT 3

"The Broadband Internet: The End of the Equal Voice?" by Jerry Berman and John B. Morris, Jr. (.pdf)

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