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WASHINGTON-A forceful, bi-partisan call from Capitol Hill for broadband open access and instant messaging protections may have stiffened the FTC's spine in its negotiations on the America Online/Time Warner merger.
At least six Democrats and Republicans on the Senate Judiciary Committee, spanning the ideological divide from conservative to liberal, wrote to Federal Trade Commission chairman Robert Pitofsky about those issues in recent weeks.
Congressmen registered their opinions as the FTC-already widely believed to have made open access a central issue in its deliberations-mulled the conditions of any consent decree with which the companies would have to comply as a condition of merger approval.
The jockeying came against a late October backdrop that saw both conditional merger approval by European regulators and continued assurances by Time Warner Chairman Gerald Levin to analysts that the merger was on track with U.S. federal regulators too.
The Judiciary Committees in both houses have oversight jurisdiction over anti-trust matters. Preston Padden, executive vice president of government relations for leading merger foe The Walt Disney Co. says those letters were meant to give federal regulators the "confidence" that Congress would support "strong and effective" merger conditions.
Conversely Reps. Bob Goodlatte and Rick Boucher-Republican and Democrat congressmen, respectively, from AOL's home state of Virginia-did write to Pitofsky saying the open access issue should be put off until a national policy is put in place. They were the key sponsors of bills aiming to convince broadband backbone companies to provide open access.
FTC imposition of open access requirements on Time Warner's Road Runner broadband service could be a galvanizing factor when Congress returns to Washington in 2001. That is because there already is considerable sentiment on Capitol Hill that significant broadband access inequalities are developing.
One example is the Ninth U.S. Circuit Court of Appeals decision in June backing AT&T Broadband's claim that federal law pre-empts local authorities-in this case the Portland, Ore., city council-from mandating open access by ISPs to AT&T's cable modem network. So there already is an open access precedent in California, Oregon and Washington state. But outside the Ninth Circuit, and in areas served by Time Warner, there is no broadband open access legal precedent yet.
The Federal Communications Commission did publish a notice of inquiry on Sept. 28, asking for public comments on issues surrounding high-speed access to the Internet provided to subscribers using cable television infrastructure. But it could take years for a final rule to take effect dictating some kind of national open access.
Legislators may not want to wait for the FCC rulemaking to run its leisurely course. They had two open access bills in front of them this year and those two bills are likely to be reintroduced in 2001. One is the Goodlatte/Boucher pair, which mandates broadband open access and allows the regional Bell Operating Companies to offer inter-LATA service. Reps. Billy Tauzin, R-La., and John Dingell, D-Mich., sponsored the second bill, which also allows the RBOCs to offer broadband data (but not voice) in the inter-LATA market without having to meet the section 271 requirements from the 1996 Telecommunications Act.
The narrower Tauzin bill had 230 co-sponsors last Congress. But it did not move forward because of the lack of enthusiasm of Rep. Tom Bliley, R-Va., chairman of the House Commerce Committee. Bliley has retired. The new chairman of the committee likely will be Tauzin if Republicans maintain control of the House. If Democrats gain control, Dingell will chair the committee.
Mark Cooper, director of research for Consumers Union, which is an ardent broadband open access supporter, has doubts about whether Congress will jump on the Tauzin/Dingell bill in 2001. He notes that it took Congress 12 years after the Modified Final Judgment to pass the 1996 Telecommunications Act. "Unless there is complete and utter pandemonium, Congress does not jump in so fast," he states.
But David Bolger, vice president for the U.S. Telephone Association, says the FCC notice of inquiry has "teed up" the issue for Congress. Asked about Cooper's comment that Congress meandered for years before passing the Telecom Act, Bolger answers, "We are on Internet time now."
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