The government should continue with its policy of "vigilant restraint" and not propose rules to impose a forced access regime on cable modem service, the National Cable Television Association said today in reply comments filed with the Federal Communications Commission as part of the agency's Notice of Inquiry on high-speed access to the Internet.
NCTA's comments pointed out that the market for Internet access service is increasingly competitive, and cable operators and Internet Service Providers ("ISPs") are already entering into commercially reasonable agreements that will provide consumers with a choice of ISPs. As the comments observed, "[t]he competitive market will prevent any anticompetitive behavior that proponents of forced access speculate might occur."
NCTA emphasized that the record in the FCC's proceeding clearly demonstrates that, in both large and small markets, "competition between cable, DSL, fixed wireless, and satellite providers of high-speed Internet services is increasing." NCTA underscored the point that virtually all of cable's competitors are able to offer a bundle of services, and "[i]t is now more apparent than ever that consumers will face a larger and larger supermarket of competitive alternatives in their communities."
The NCTA comments also explain that the FTC consent decree authorizing the AOL/Time Warner merger underscores "how very inappropriate forced access requirements are for other cable operators." In so doing, the comments emphasize that "[n]o other cable operator possesses the assets that prompted the FTC to impose forced access conditions on AOL/Time Warner, [and] [n]o other cable operator serves more than a small fraction of the embedded Internet customer base of AOL."
The NCTA filing also refutes the charge that cable operators might attempt to control access to Internet content through caching or other means. "Consumers expect and demand unhampered access to the Internet content of their choice, and would not tolerate the types of behavior envisioned by proponents of forced access," the NCTA submission states. "A cable operator that attempted to control subscribers' use of the Internet and eliminate unaffiliated content providers' ability to reach consumers by steering subscribers to affiliated content through caching or any other means would fail to gain new customers and quickly lose its existing customers to its competitors." In the real world, NCTA noted, caching is not discretionary. "Content is cached automatically based on the frequency of customer visits, not affiliation with the cable operator," NCTA said.
The NCTA comments also addressed the potential problems that would result if government-mandated access were extended to interactive television (ITV). "If anything, the case for requiring access to a cable operator's ITV platform is even less supportable than mandatory access for ISPs," NCTA noted. In the same vein, NCTA observed that "ITV is at an even earlier developmental stage than high-speed Internet access. Indeed, most cable operators have not even determined how, if at all, they will use or offer ITV. ITV is not yet available in most places, and the very concept of 'ITV' itself is not remotely subject to a uniform definition at this point in its development." NCTA concluded that regulatory intervention is justified only where there is an identifiable failure in the marketplace, and "imposition of burdensome regulations in advance of any evidence that they are warranted will only serve to stifle the development of this promising service."
NCTA also rejected calls for "regulatory parity" advanced by cable's local telephone company competitors. Such suggestions "ignore the factors that give rise to the different regulatory treatment accorded cable operators and incumbent telephone companies," NCTA notes, concluding that the FCC's current policy of "vigilant restraint" is the appropriate regulatory stance towards cable modem service.