The world's largest Internet service provider, America Online, is currently seeking regulatory approval for its merger with the world's largest media company, Time Warner. Time Warner owns a gaggle of cable providers; AOL sees cable as the future for broadband Internet access.
A diverse coalition opposes the merger's unless regulators ensure that access to Time Warner's cable is kept open for competition. This coalition includes some of the original architects of the Internet as well as consumer groups, Internet service providers and the Disney Corp.
Sebastian Mallaby [op-ed, Oct. 15] offers readers the inside-the-Beltway view of what this debate is really about: Disney. Disney made an investment mistake, Mallaby writes; it bought a broadcaster rather than a cable company, and now wants regulators to correct that mistake by guaranteeing it access to Time Warner's cable. The others who have been pushing the principle of "open access" have apparently been duped by Disney. The only principle here, Mallaby suggests, is the principle of regulatory pork. And Disney wants more.
Mallaby is caught in a cartoon. This debate is not about Disney--just as it was not about AOL when AOL asked San Francisco to require open access to AT&T's cable lines, nor about AT&T when AT&T asked Canadian regulators to require open access to Canadian cable lines. This debate is about the environment within which the next generation of the Internet will develop.
Two models of network design have governed telecommunications over the past century. One produced the Internet, the other cable TV. Under the design that gave us the Internet, control is decentralized. The network owner cannot control the content or applications that run on the network. Users choose from an almost unlimited range of content and applications.
Under the design of cable TV, the network owner does control the content. It decides what shows should run. If it doesn't like ABC, it gets to remove ABC from its wires--as Time Warner in fact did last May after an argument with Disney.
The cable model was chosen by Congress at a time when cable served just dumb TV. In the 30 years of cable's life, there has been little innovation from serving dumb TV. But now cable wants to serve something new on its wires--broadband Internet. And the question for regulators is: Under what model? Should the cable company have the power to control Internet content just as it controls TV content? Should it be allowed to discriminate against content it doesn't like, or content that doesn't pay? Should it be allowed to demand a tithe from Amazon for books ordered across its wires? Or from Disney for cartoons streamed from Disney's channel?
These questions are difficult, as they implicate both innovation for the Net and justice for cable providers. The model of the Internet has produced extraordinary innovation just because the network owner didn't control what innovation would be allowed. The same would be true if broadband Internet were kept free from the network's control. But cable companies complain that they earned the right in Congress to the control of cable TV and should be allowed to extend that model to whatever content they wish.
AOL and Time Warner have promised to limit this control by keeping 10 percent of their bandwidth open to outside competition. But 90 percent remains under the traditional cable TV model. And while much of this 90 percent will serve traditional TV, much will serve "interactive content."
Many are skeptical about even the 10 percent, believing AOL-Time Warner will build too much control into their licenses. But a much more fundamental issue is at stake. Cable TV has bought the right to control traditional dumb TV. What reason is there to permit it to extend that control to the Internet? Cable didn't invent the Internet, nor did its closed architecture inspire the innovation the Internet did. Rather than extending the model of cable TV to cover the Internet, why not extend the model of the Internet to cover all Internet-active TV?
If there were some reason to believe we would get more innovation and more diverse content with the Internet controlled the way cable TV is, then there might be a reason to allow cable to extend its model. But history gives us no such reason. The innovation of the Internet came from freeing the innovators from control by the network owners.
The merger of these two giants of content and access will test the commitment of federal regulators to the principles of openness that produced the Internet. Allowing cable to control broadband access and use would compromise the promise of the Internet. Allowing the model of the Internet to govern more of cable would mean more innovation and diversity. This is the principle at stake in this dispute, not the Mickey Mouse intrigue that captured Mallaby.
The writer is a law professor at Stanford University.