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DEFINING "OPENNESS"

Open Access Principles for the Broadband Internet

The Center for Democracy & Technology

February 2000

One of the most prominent ­ and hard fought ­ public policy debates over the last year has been whether cable television systems should be forced to permit unaffiliated Internet Service Providers ("ISPs") to offer high-speed "broadband" Internet service over the cable system wires. As this "open access" battle has been waged, many participants in the debate have used, and laid claim to, the concepts of "openness" and "open access." Many ISPs and public interest advocates have demanded that the cable industry "open" their cable systems, and that the government take action to force such "openness." Some cable companies have in turn asserted that their systems already are "open," in that their customers can reach any content on the Internet without restriction. Recently, some leading companies have stated that they intend to "open" their cable networks voluntarily, by allowing some number of unaffiliated ISPs to offer service over the networks.

Throughout this entire debate, however, a critical element has been missing ­ consensus on what exactly "openness" is. The debate has been about the "how" (market forces, Congressional statute, federal regulatory rule, or other governmental action) without first making clear the "what."

This paper focuses exclusively on the "what," and attempts to define "openness" and "open access" in the context of the debate over broadband access to the Internet. The paper first looks briefly at the critical and unique characteristics of the low-speed "narrowband" Internet, and then maps those characteristics into the broadband world. Based on the principles established in the narrowband world, the paper then identifies specific steps that the Internet industry in general, and broadband providers in particular, must take for the broadband Internet to remain as "open" as the narrowband Internet has been. The principles and specific steps identified are not focused solely on the cable industry, but are intended to be principles and actions applicable to the entire broadband Internet industry.

This paper does not address the "how" ­ whether broadband Internet market should be allowed to try to take the identified steps on its own, or whether a governmental body should step in and force the networks to be open. This paper also does not attempt to address every public policy issue and concern raised by the evolution of the broadband marketplace today. The paper does not, for example, discuss whether undue market power arises from the aggregation of simultaneous ownership of content and access pipes. Nor does the paper address whether a competitive market is threatened by bundling or other market actions taken by the owners of access facilities.


"Open" Characteristics and Principles of the Narrowband Internet

Before defining "openness" for the broadband Internet, it is critical to understand what that term has come to mean in the narrowband world. In the first comprehensive assessment of the Internet by an American court, a federal court in Philadelphia in 1996 found what it termed "a unique and wholly new medium of worldwide human communication." [ 1 ] The narrowband Internet has been "open" at virtually all levels of its existence. The "network of networks" operates using open and freely available technical standards, allowing literally millions of different (and often incompatible) computers to communicate seamlessly. The open protocols used for Internet traffic 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 judge put it, the "Internet is a far more speech-enhancing medium than print, the village green, or the mails." [ 2 ] 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. [ 3 ]
The "openness" of the narrowband Internet 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 with little or no investment. 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.

Some of the "open" characteristics of the narrowband world may be threatened by the technological and business developments in the broadband world. This paper seeks to identify the key characteristics of the narrowband world, and "map" them into the developing broadband Internet. The paper then offers specific steps that companies and the Internet industry can take to ensure that the openness of the Internet will continue with broadband technology. In considering the issues raised by broadband technologies, this paper should help in defining the goals that any public policy strategy (whether governmentally imposed or privately implemented) should pursue.

Open Access Principles for
the Broadband Internet

ABILITY TO USE THE INTERNET TO ITS FULLEST POTENTIAL

In the narrowband world, Internet users are generally free to use their Internet connections to access any part of the Internet and to run any Internet-related application, so long as such use does not harm the operations of the network or the use of the Internet by others. On certain facilities in the broadband world (those where the "last mile" connection to the user is a shared resource [ 4 ]), there is greater potential that an individual user could harm the ability of other users to access the Internet, and thus facility owners may (but may not) need to impose restrictions on use. This increases the risk that a facility owner might impose restrictions for anticompetitive reasons.

Internet users should be able to use their Internet connection to access any part of the Internet and to run any Internet-related application, so long as such use does not harm the operations of the network or the use of the Internet by others.


    A. A facility owner should impose no limits on the content, applications, or functionality that an ISP can make available to its customers. In situations where the last mile connection to the individual users is a shared resource, a facility owner may impose reasonable limitations or restrictions on the data flow rates (including burst rates and packet sizes or volumes) that can be provided and supported by an ISP, so long as (a) the limitations arise out of reasonable technical and engineering concerns, and (b) the limitations apply equally to all ISPs providing broadband service.

    B. To the extent any technically-required limitations are placed on users' ability to use the Internet, facility owners and the Internet industry in general should engage in research and development efforts to maximize the functionality available to user and thus to minimize any technically-required limitations.


ACCESS TO SPEECH OF OTHERS

In the narrowband world, Internet users can access any publicly posted constitutionally protected speech on the Internet free from interference or restrictions imposed by their ISP or facility owner. In the broadband world, this critical feature of the Internet should continue.

Internet users should be able to access any publicly posted speech on the Internet free from interference or restrictions imposed by their ISP or facility owner.

    C. A facility owner should impose no limits on the constitutionally protected content that an ISP can make available to its customers (except technically-required limitations, if any, as discussed above), and should allow ISPs and their customers to reach ­ or filter ­ any Internet content.

    D. In contracting with ISPs, facility owners should ensure that all Internet users on their facilities have access to at least one ISP that offers unrestricted and unfiltered access to constitutionally protected content on the Internet.


In the narrowband world, all speech is available to all Internet users essentially equally, without any particular type of speech (such as commercial speech) being easier or faster to access. In the broadband world, selected high-bandwidth content will be delivered more quickly to users that over other content, creating the risk that types of speech will be favored and others disfavored.

The broadband Internet infrastructure should not favor particular types of content over other types.

    E. Broadband providers and the Internet industry in general should maximize the ability of broadband users to access a diverse range of broadband, high-bandwidth content, including content of individuals, non-profit organizations, and community entities.

    F. Broadband providers within a geographic area should work with, and interconnect with, each other, so as to maximize the ability of broadband users to reach broadband content quickly.


ABILITY TO SPEAK AND BE HEARD

In the narrowband world, Internet speakers can post essentially any constitutionally protected speech in any form free from interference or restrictions imposed by their ISP or facility owner, and can do so for relatively little expenditure. In the broadband world, this critical feature of the Internet should continue.

Internet users should be able to post any constitutionally protected speech in any form free from interference or restrictions imposed by their ISP or facility owner.

    G. A facility owner should impose no limits on the constitutionally protected content that an ISP can permit its customers to post to the Internet (except technically-required limitations, if any, as discussed above).

    H. The Internet industry should strive to maximize the ability of individual speakers to post speech to the Internet with relatively low expenditure.


In the narrowband world, all speakers can reach all Internet users essentially equally, without any particular type of speaker (such as commercial entities) better able to reach listeners. In the broadband world, as indicated above, selected high-bandwidth content will be delivered more quickly to users than other content, creating the risk that types of speech will be favored and others disfavored.

The broadband Internet infrastructure should not favor particular types of speakers over other types.

    I. Broadband providers and the Internet industry in general should strive to maximize the ability of a diverse range of broadband speakers, including individuals, non-profit organizations, and community entities, to reach listeners as quickly and efficiently as can commercial speakers, and to do so at a reasonable cost.

    J. Broadband providers within a geographic area should strive to maximize interconnections among providers, so as to maximize the ability of broadband speakers to reach broadband listeners.


CHOICE OF METHODS AND PROVIDERS TO ACCESS THE INTERNET

In the narrowband world, most Internet users have a wide range of choices among ISPs offering access to the Internet, and ISPs are able to operate under a wide variety of business models and offer a wide variety of services to users. In the broadband world, users' choices may be much more limited.

Internet users should have choice among broadband facilities (e.g., cable, DSL, wireless, etc.) and, within each facility, among broadband service providers, and both facility owners and the Internet industry should strive to maximize the available choices.

    K. Individuals should be able to obtain broadband service over a variety of competing "last mile" facilities.

    L. Within each type of last mile broadband Internet access facility, broadband users (whether individuals or businesses) should be able to obtain broadband service from a range of Internet Service Providers (ISPs), including both affiliated and unaffiliated ISPs. A last mile broadband facility owner should allow access to such facility by both affiliated and unaffiliated ISPs.

    M. A last mile broadband facility owner should permit third party access by any qualified ISP, constrained only by legitimate technical limitations (if any) on the number of ISPs that can reliably be supported by the facility. To the extent any such limitation exists, facility owners and the Internet industry in general should engage in research and developments efforts to maximize the number of ISPs that can be supported over any particular type of facility.

    N. A last mile facility owner should permit access by both affiliated and unaffiliated ISPs on a non-discriminatory basis, specifically (but without limitation) with regard to (a) financial terms, (b) physical access and technical capabilities, and (c) operational support systems.

    O. Broadband users should not be required to pay for service from an ISP affiliated with the facility owner in order to obtain service from an unaffiliated ISP.

    P. A facility owner should permit unaffiliated ISPs to interconnect into the communications system at one or more reasonable and efficient points, and an unaffiliated ISP should be permitted to transport its customers' Internet traffic from the interconnection point(s) onto the ISP's facilities for delivery to the requested destinations.


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1. American Civil Liberties Union v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996) (available at http://www.ciec.org/victory.shtml).

2. Id. at 882 (Dalzell concurring).

3. Id. at 877 (Dalzell concurring).

4. The term "last mile" is commonly used to refer to the physical connection (e.g., telephone wire for DSL service and fiber and coax cable for cable service) between an end user's home or business and the "central office" or "headend" facilities of the service provider. In a typical cable facility, the total capacity to carry Internet data is shared among many customers of the cable system, and a single customer using an overly large portion of that capacity could harm the ability of other customers to access the Internet.