If you have been following the debate over open access to AT&T's recently acquired cable systems, you'll know that some district courts have sided with cities like Portland, Ore., which has demanded that AT&T allow competing Internet access providers to use its cable system. On Monday the Federal Communications Commission filed a "friend of the court" brief opposing the Oregon ruling. On Tuesday, Excite@Home, the high-speed Net service provider, will follow suit with a brief of its own, asking the court to overturn its decision. "Allowing 30,000 local governments to impose a raft of new, burdensome rules will significantly delay the development and deployment of high-speed Internet services," says an Excite@Home news release about its brief.
When federal bureaucrats and big business lobbyists are on the same side, my natural tendency is to look for a fly in the ointment. In this case, however, the feds and big business have a point. Consumer advocates tend to portray open access as an issue of business interests vs. consumers. In truth, it really is more complicated.
The paradox of the communications age is that even as the vast network of interlaced media and communications technologies becomes ever more national or even international in scope, local governments wield a progressively more fearsome regulatory stick. The paradox emerges because every local government threatens, by regulating within its jurisdiction, to exercise a kind of veto power over national policy. The shape of national telecommunications policy, painstakingly crafted within the corridors of Congress and the FCC, effectively becomes hostage to the desires of one or 10 or 100 local legislative bodies.
Liberals tend to like the effects in this case. They like the idea of a good deal for consumers, and they dislike, with good reason, the procession of industry lobbyists crowding into local government offices and trying to pass themselves off as a grass-roots movement.
The danger is that if the principle of local regulation is extended to other areas, the effects might turn out to be a lot harder to like. The local preeminence that might lower cable modem rates in Portland is the same one that a prosecutor in Tennessee appeals to when he seeks to sanction a pornographer in California, that the U.S. government appeals to when it seeks to block the Web site of a casino in Antigua and that China can appeal to when it tries to shut down a pro-Taiwan Web site in New York.
Lots of experience says that the tendency of governments is to regulate, and the tendency of big multinational corporations is to cave under pressure. The more international companies are subject to the whims of local regulators in one area -- infrastructure -- the more they will be subject to those same whims in another -- content. Regardless of where one stands on regulating infrastructure, I suspect most people will oppose regulating content. The danger is that as the court battles heat up, the two might end up going hand in hand.