Open Access to Monopoly Cable Platforms Versus Direct Access To Competitive International Telecommunications Satellite Facilities: A Study In Contrasts

The FCC is now engaged in resolving whether to require cable system operators who provide cable modem service to residential users to furnish cable transmission capacity to unaffiliated Internet Service Providers. To resolve this controversy, the FCC has expressed a desire " to develop an analytical approach that is, to the extent possible, consistent across multiple platforms. " This comment may have been intended to specifically highlight the fact that DSL service is currently subject to a panoply of access and unbundling requirements that do not now apply to cable modem service. However, it can also be read more broadly to suggest that in a world of increasing technological convergence and increasing intermodal competition, a more universally consistent analytical approach is needed to resolve the many analogous disputes over competitive access to proprietary bottleneck facilities that arise in a broad range of communications contexts. The issues raised by the current dispute over " cable open access " are substantially analogous to those raised in the longstanding dispute over " direct access " to the INTELSAT satellite system. That dispute was resolved in 1999, when the FCC authorized unaffiliated competitors to obtain direct access to INTELSAT, on the grounds that such a policy would : (1) encourage the widest possible deployment of communications facilities; (2) encourage competition among providers of communications service; and (3) benefit consumers by facilitating lower prices and more diverse service offerings. Each of these arguments have been raised by proponents of cable open access. In fact, without exception, these criteria each support the implementation of cable open access today at least as strongly as they supported the implementation of direct access to INTELSAT in 1999. Accordingly, implementation of cable open access would be analytically consistent with the implementation of direct access to INTELSAT. Conversely, an FCC decision not to implement cable open access would be analytically inconsistent (indeed, irreconcilable) its decision to impose INTELSAT direct access decision.