Gigabyte March on Washington

The WBIA has watched with alarm and grave concern at the erosion of our nations global ranking in technology deployment, competition, consumer choice, open-access and the threat to technology innovation. “As though death-by-a-thousand-cuts, the WBIA has spoken out regarding our concerns about the steady stripping away of those rights to bring access and choice to consumers”, said Cynthia de Lorenzi, WBIA co-founder.  To strengthen the call to our nations leaders, WBIA has joined its voice with consumers and other coalition members of It's Our Net Coalition, which was founded by Amazon.com, eBay, Google, IAC/InterActiveCorp, Microsoft and Yahoo!

There are issues that deal in the basic fundamentals' of common carriage (CC) and use of essential facilities' (EF), that both the FCC and Congress are twisting to their political benefits. The political benefits are those of contributions for elections and in the case of the FCC is their job in the private sector after their term is up.

Political motives aside, we need to also go after their contributors, e.g., the Bell's. Now unfortunately the FCC feels their purview has no limits, as such in case of Brand-X thus killing off line-share, Comp II/III and forbearance of other TA 96 rights of access.

I'll digress from this for now.

It is of my personal belief that CC of EF must be upheld and that the rights of access be codified to keep it intact  without bias. When it comes to applying a potential antitrust to the Bell's punitive and perverted tactics against competitive service providers, (ISP/CLEC's) we are talking about true EF and not intellectual properties (IPRP).

As for the FCC, what legitimate (of law) reasons or proof by study, (as Bruce Kushnick has documented on this topic) have they provided in granting forbearance in eliminating access for service providers to offer broadband services? IMO, the FCC has stepped over their bounds and have used their ancillary jurisdiction without conscious.

I do not profess to have any legal or professional experience in antitrust or any published doctrines of written theories, but there is plenty to read up on about the subject of Essential Facilities under antitrust law.

Unfortunately the TA 96 authors could not possibly foresee the evolution of the Internet as it has become today and the paradigm of economics it has developed. Is the argument one of EF or IPRP or both?  Let's assume that without the development of the browser and related coding, could the use of the Internet have been accomplished as in its use as it is today.

Are the Bell's not also interfering with IPRP developments and its use with the Internet, of which most of those developments were provided free for use? Can antitrust be used as an argument that the Bell's tactic's are
hindering the development of greater and more efficient tools to use the Internet, e.g., VOIP? Some argue that applying antitrust will hinder innovation for the monopolist, but conversely, the monopolist in this case
did not develop the IPRP, e.g., web browser, but is in control of the EF that the IPRP needs to use.

Now we are back to the basic foundation of common carriage and application layers, both essential for the use of the Internet and the World Wide Web.

In closing, it is of my opinion that antitrust can be applied and that the competitive service providers (ISP,CLEC) take their argument to court and seek relief of damages they have suffered, in their obstruction of accessing EF by the laws of common carriage. And as a parallel ally, should be those innovators of products and services that use IPRP in maintaining their businesses.

It's time to go to court...


Frank Muto
Co-founder -  Washington Bureau for ISP Advocacy - WBIA  www.wbia.us

Structural separation, or divestiture as some will call it, is the main issue I feel needs to be looked at very seriously. It's assumable that damages have occurred due the very nature of the Bell's in their efforts to eliminate competition from ISP's and CLEC's.

Many times we have seen over the years,  ISP/CLEC's have been hurt when the Bell's abused the laws, e.g., cross subsidation, CPNI, below market pricing of a monopoly, whereas the monopoly also had control of the network that competitor's needed to offer services. These examples are by far exhaustive, but lets' assume that there can be reasonable evidence to prove damages.

I personally see no other course of action other than in court.  There are hundreds of telcom cases going on in each state. Singularly, each case is extremely difficult and costly, but as a group, industry wide, I feel there is just cause for taking the steps to look at splitting up the transport and content service layers.

 I feel the time has come that the convergence of technologies moving towards an IP platform could benefit all concerned and provide for wider competition, innovation and cost effective network build outs.

With the separation of transport, service, applications and content, the end result would provide for easier integration of services from various providers. There is no need for just one or two providers to control all the needs of data and communications any longer (just for the sake of stock holders). Individuals and businesses would be able to pick and choose at their own will and not forced into one or two choices.

With separation, greater opportunities would exist for companies to specialize in any core business they choose. This would also benefit the user of those services to match the best services to meet their needs.