November 14, 1999 The Cable Debate, Part II
Competition should be the policy.

By Lawrence Lessig

Last month I wrote against cable blackmail – the threats by cable providers to build cable networks to shut out competing ISPs. Immediately afterward, AT&T and a host of cable interests launched a massive publicity campaign to counter the effects of my column (Joke, OK?). Herein, round two. Every argument in Internet space must use either the word "open" or a variation on "keep government out." This battle has both.

On one side are ISPs, including AOL (AOL) , arguing for open access to broadband cable networks. On the other is AT&T and its increasingly owned cable allies, which are rallying under the moniker, "hands off the Internet."

Hands off the Internet opposes government "regulation" of Internet space. As "Episode 1" in its position papers puts it, "AT&T and other cable companies do not want to have the government force them to provide their competitors with space on their lines after spending billions to build high-speed networks ... so [that AOL and local phone companies] can profit from the hard work ... of others."

Thus, keep government out. And anyway, we are told, open access won't work. "Because of the way cable systems are designed," Elizabeth Douglass of the L.A. Times recently reported, "allowing multiple Internet providers to use cable networks ... would lead to slowed data speeds and other glitches. Cable networks differ in architecture from telephone systems, which can accommodate thousands of competing Internet providers without mutual interference."

It is a familiar tune: Companies don't kill competition; code does. Cable companies would open access if they could. But sadly, the "architecture" of cable makes it closed. Government shouldn't "force" open access, because open access will break cable.

The irony here is too thick for 800 words. The last time AT&T had something interesting to say about what wouldn't work, it was when it told the government (in a story wonderfully told by Katie Hafner and Matthew Lyon in Where Wizards Stay Up Late) that the Internet could not work. Then, when competitors suggested AT&T open up its telephone network, it was telephone competition that couldn't work. And now that cable may be the broadband channel of choice, it turns out that designing the cable network to allow multiple ISPs also can't work. Nothing seems to work, until competitors or governments insist.

With all these people putting their mouth where their money is, it's hard to know which answer is right. Indeed, given the radical changes in broadband access and the billions devoted to finding a better way, it's not even clear a right answer yet exists. It may well be that each home will have three or four channels of broadband access. If that's how thing shake out, who cares if AT&T is your only ISP. Competition will make these broadband services good. But if these competing systems don't develop, then the architecture of the cable network becomes important.

Which brings me back to "regulation." This debate won't go anywhere if we can't get beyond this high school way of talking about "regulation." Look, everyone lives life subject to government regulation. Grocery stores must take "reasonable care" to keep the aisles clean. If a bottle of applesauce smashes on the floor, and the store does nothing about it, it will be liable for accidents. The law imposes a standard ("reasonable care"); the grocery company must implement it. So it is everywhere:

The law sets the policy, people must implement it. In the "distributor" business (which is how AT&T describes its business), competition should be the policy. The only question is that policy's form. AT&T would be right to fear is FCC technicians being dispatched to code its cable network, then AT&T is right. That form of regulation would be a disaster. But if the government simply makes a very traditional principle clear – namely that if cable becomes the natural channel of Internet access, then it will have to architect itself to allow competition – then that is regulation, and a good one, too.

The law is about setting policy – the policy of fostering competition or fostering a hand-off to another service provider. The complication of cyberspace is that architecture is about setting policy – the policy of fostering competition or fostering a hand-off. Regulation is about which policy should prevail. Governments should be clear about the policy, and let the coders code it.

If you want to call that regulation, then I'm all for regulation. But the picture of AT&T, standing on the shoulders of its newly acquired cable monopolies, themselves monopolies because local governments made them so, crying "get the government out," is, well, silly. Cable monopolies were made by governments. AT&T was created by a court. It's a bit late to be discovering libertarianism.

Lawrence Lessig is Berkman Professor of Law at Harvard Law School.

Source: The Industry Standard, Nov 14, 1999
(http://www.thestandard.com/article/display/0,1151,5621,00.html)