June 11, 2002
Chairman Jim Compton
Police, Fire, Courts & Technology Committee
Seattle City Council
600 Fourth Avenue #1100
Seattle WA 98104-1876
RE: AT&T-Comcast merger
Dear Chairman Compton:
As an organization dedicated to fostering free speech, the open exchange of ideas, and access to information, the American Civil Liberties Union urges you to consider closely the ways in which the merger of AT&T and Comcast could limit these liberties.
There is a danger that if cable becomes the dominant provider of Internet connections, the Internet will come under the private control of companies that are unrestrained by competition or regulation.
The Internet is without doubt the most vital and active free speech forum today - a place where a single person can quickly and easily spread her views around the world, where individuals can engage with others through online bulletin boards and chat rooms, or communicate anonymously about difficult topics. It is the closest thing ever invented to a true "free market" of ideas.
To help keep the Internet a true free market of ideas, the ACLU urges you to reserve the right to require open access as a condition of approving the Comcast franchise transfer, should the Supreme Court or the FCC allow you to do so. In other words, please keep open the city's future options.
In order to understand how free expression and other liberties are endangered as the Internet shifts toward cable broadband, it is important to understand the following key points.
The Internet has succeeded because it is open. The tremendous growth and success of the Internet is a result of the lack of centralized control over how the network is used - it serves as a neutral "pipe" that automatically carries data from origin to destination without interference. No company, individual, or institution has the power to decide which applications the user may run on his or her end of the network, what kinds of data can be moved through the network, or whose data moves faster.
Cable networks are not open. In contrast, cable companies are not currently required to provide unfettered access to content, as the phone companies do. While phone companies are subject to the "common carrier" regulatory regime, cable companies are not. The common carrier policy requires that a network owner treat all information the same, and prohibits the owner from halting, slowing, or otherwise tampering with the transfer of any data. Because cable companies are not subject to this policy, the information content that cable companies deliver is under their sole control, thus enabling them to restrict customers' options and effectively censoring their access to information.
Cable Internet providers wield total control over customers' Internet use. They can block their customers from using particular applications, such as video conferencing, Internet telephony, and virtual private networks. Even more serious is the growing ability of cable providers to interfere with content. Cable providers can slow or block access to Web sites of their choosing or to sites with content they consider objectionable for political or competitive reasons.
A cable provider's unqualified control over its network also has serious privacy implications. The cable provider has the technical capacity to record everything its customers read or write online, down to the individual mouse click. In February 2002, the nation's third-largest cable company, Comcast, without notice to its customers, began to track their Web browsing. Although the practice became public and was quickly ended under a cloud of very bad publicity, corporations are increasingly viewing personal information such as Web browsing habits as a valuable resource to be mined, marketed and sold to the highest bidder.
Such incentives for violating privacy aren't going to go away, and the increasing power of cable providers (combined with the lack of privacy protections in the law) makes future surveillance attempts like Comcast's very likely.
Cable broadband is unrestrained by regulation. Because the expensive technological architecture and the current regulatory structure of cable do not readily accommodate free-market competition, consumer and free-speech advocates and many others have called for regulators to mandate "open access" of cable. The Council should consider rules that allow customers to choose among multiple, competing Internet Service Providers over their cable broadband connection. That way, individuals who are unhappy with a cable operator's restrictions on content (or high fees or inadequate customer service, for that matter) will have meaningful alternatives.
Open access of cable has been strongly opposed by the cable providers and, so far, spurned by the Federal Communications Commission (FCC), which regulates the cable industry. The FCC has, in fact, made regulatory decisions that, if they stand, will ensure that cable Internet services are not regulated at all.
Cable companies are unrestrained by competition. Most Americans are served, and will continue to be served, by only one cable provider. Opponents of cable regulation have argued that competition will flow from the availability of other, non-cable forms of access. The main alternative form of high-speed access, DSL, is not an option for a large portion of the population and has not developed into an effective alternative to cable. That is why open access regulations are needed.
In short, cable Internet access involves more than just monopolistic companies that are unrestrained by competition and by the government. Cable Internet access implicates the most revolutionary forum for speech and self-expression since the invention of the printing press, a forum that may be the most valuable new civic institution to appear in the United States in the past century. An unregulated monopoly is bad for consumers; a monopoly in Internet access is far worse: it is bad for democracy, and, therefore, bad for America.
Therefore, we urge the Seattle City Council to reserve for itself the right, should it become legally possible, to require open access as a condition of the AT&T-Comcast franchise transfer.
Kathleen Taylor Executive Director