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Resolving Policy Chaos in High Speed Internet Access

Public policy for high-speed internet access is in chaos. The nation's primary regulator of the communications sector, the Federal Communications Commission, has pursued "asymmetric regulation" (that is, different rules) for the technologies that can provide some form of high-speed internet access (telephony, cable television, wireless data networks, and satellite distribution systems). Three federal courts (two circuit courts of appeals and one district court) have issued contradictory decisions regarding whether cable modem access can be regulated and, if so, by whom. Two federal regulatory agencies, the Federal Communications Commission and the Federal Trade Commission, have adopted mutually inconsistent policies regarding cable modem access, each in the context of approving a merger. Numerous local franchising authorities have reached mutually vastly different conclusions about whether they can and should impose equal access requirements on cable modem access. Much has been written about whether high-speed internet access should be regulated, and if so, what those regulations should be and which bodies – whether franchising entities, utility regulators, or antitrust authorities, and whether local, state or federal government – should have front-line responsibility for making the rules. With few exceptions, these analyses are adversarial documents written by individuals who work as consultants for parties that have a major financial stake in this issue. And even the few exceptions usually are defenses of a particular policy position. Although many, if not most, of these arguments are logically correct, they tend to be partial and incomplete. The purpose of this essay is to step back from this adversarial debate for the purpose of describing the issues on which access policy should turn, and to provide a guide to policy makers about how to sort out the adversarial arguments.

Roger Noll
Publication Date
January, 2002