Antitrust issues of Common Cariage and Essential Facilities (Commentary)
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
