• Offer Consumers Choice: AOL Time Warner is committed to offer consumers a choice among ISPs. Consumers will not be required to purchase service from an ISP that is affiliated with AOL Time Warner in order to enjoy broadband Internet service over AOL Time Warner cable systems.
• Diversity of ISPs: AOL Time Warner will not place any fixed limit on the number of ISPs with which it will enter into commercial arrangements and it will offer those ISPs the choice to partner on a national (on all AOL Time Warner cable systems), regional or local basis, in order to facilitate the ability of consumers to choose among ISPs of different size and scope.
• Direct Relationship with the Customer for ISPs: AOL Time Warner is also committed to allow both the cable operator and the ISP to have the opportunity to have a direct relationship with the consumer. Accordingly, both the cable operator and the ISP will be allowed to market and sell broadband service directly to customers. When an ISP sells broadband Internet service directly to a customer, it may, if it so chooses, bill and collect from the customer directly.
• Video Streaming: AOL Time Warner will allow ISPs to provide video streaming. AOL Time Warner recognizes that some consumers desire video streaming, and AOL Time Warner will not block or limit it.

"This is an important first step," declared Jeffrey Chester, executive director of the Center for Media Education (CME), part of a coalition of groups that has been campaigning for a national open-access policy over the past year. "AOL Time Warner today laid the groundwork for a more open broadband Internet. But we have not heard how other cable giants, including AT&T, will adopt similar open-access guarantees."

CME and others point out that there are also many other issues still to be determined throughout the broadband environment, raising questions that neither AOL-TW nor AT&T have addressed. These issues include the following:

• Data collection: the extent to which subscribers' tastes and preferences are monitored, compiled, and shared.
• Diversity: the degree to which independent voices will be heard in an increasingly homogeneous, "branded" online environment.
• Democracy: the maintenance of a vital "civic sector" within the broadband environment, a place where citizen dialog is encouraged and where noncommercial, educational, and cultural expression can flourish.

"These are among the most important aspects of open access," explained Chester, "and even with today's announcement, several questions remain unanswered. The 'three Ds' -- data, diversity, and democracy -- are at the head of the list, especially in light of cable's past record of maintaining a closed, 'top-down' system. There are some things that the marketplace does well, but serving diversity and democracy is not always among them, which is why we still need a national policy on open access."

Reaction from Congress

At a Senate Judiciary Committee hearing earlier this month, Chairman Orrin Hatch (R-UT) led the committee's skeptical questioning of the agreement, describing it as a "promotional document" that was neither binding nor definitive. "Given that this document lacks both enforceability and specificity, this committee remains to be convinced of its value beyond the boardroom and public relations office of AOL/Time Warner," he said. "A cynic could question whether, not unlike vaporware, the promises presented in this document will ever materialize in the market place.'' Case and Levin countered the Senators' skepticism by pointing to the memorandum as testament to their sincere commitment to open access. Both Case and Levin did their best to assure the Senators that the pledge was real. "I think you'll find in the months ahead that we're dead serious about this, and there will be no need for government involvement because our companies, and we believe other companies, will get on this bandwagon,'' said Case. Sen Dianne Feinstein (D-CA) asked if the pledge to open access was legally binding. Mr Levin dismissed that as a "legal nicety" and told her what really mattered was his personal commitment.

Congress is unlikely to interfere in the proposed merger and seems willing to accept AOL and Time Warner's vow of "personal commitment" to open access -- perhaps weighing in later if necessary.

Eyes Still on Portland

While a few legislative battles on the issue are brewing at the state level, advocates on both sides are most closely watching the outcome of a federal court case in Portland (OR). Last year, local regulators ordered AT&T to open its cable network to other ISPs in Portland as a condition of approving its merger with Tele-Communications Inc. AT&T is currently appealing a federal court ruling ordering the telecommunications giant to comply with the local order to provide access to its cable platform. While the Ninth U.S. Circuit Court of Appeals is expected to rule later this year, the Mt.Hood Cable Regulatory Commission, which has jurisdiction over Portland area, is consider bids for franchises from four companies that seek to offer new high-speed fiber optic cable broadband networks to the citizens of the Portland area.

"For more than a year, the cable industry and its surrogates have argued that imposing an open access requirement would chill the roll-out of broadband technologies because no company would make the necessary investments in an era of regulatory uncertainty,'' said Greg Simon, co-director of the openNET Coalition. "Yet here are four companies that are willing to make the investments even though the Ninth Circuit is still considering an appeal of AT&T's failed lawsuit."

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