Just how open must an open network be for an open network to be labeled "open"?

Abstract

In 2003, the U.S. Federal Communications Commission (FCC) will decide in multiple contexts the extent to which governmental action should be used to maintain the "openness" of telecommunications and Internet networks. At the same time, the European Union will put into effect its new, comprehensive Access Directive. 2003 may, therefore, be a critical year for the future of governmental policy towards the "openness" of next-generation networks. This paper argues that the debate between "open" and "closed" networks has been insufficiently precise and, therefore, has failed to bring to policy makers' attention critical factors of decision. That is because the choice between "open" and "closed" networks is not binary; rather it consists of different policy bases operating from different perspectives on the network. Arguments for or against governmental opening of a network can be premised on a variety of disciplinary regimes that include, for example, engineering principles, economic theory, social philosophy and legal analysis. Often ignored is the plain fact that these disciplines do not always line up with each other. This will be critical to understand if in the future policy makers are asked to weigh claims of economic theory ? say the need to encourage investment ? against claims of social philosophy ? say the value of free speech and experimentation. Nor do contentions necessarily operate at the same perspective. From a user's perspective, the network can include the activities of an end user, competitive network provider, an independent content/software provider, or the network owner itself. Thus a claim of an end user's "right" to access content through a network may shed little light on the claim of a competitive network provider to use that same network. This paper demonstrates the interplay of the policy bases and network perspectives with four examples: Access to Regional Bell Operating Company (RBOC) networks; access to U.S. cable networks; the European perspective as demonstrated in the Access Directive; and, the architecture of the Internet itself. Along the way, the paper also notes, as an aspect of future analysis, the extent to which the Internet as an "idea" influenced public policy in a manner that departed from normal interest-group politics. The paper posits, as an example, a decisional template that could be employed, for each perspective on the network, to distinguish between policy disciplines. The paper concludes by noting those circumstances that reinforce the continuing importance of the "open/closed" network question. The goal of this paper is not to advocate for any particular policy outcome. It is, rather, to demonstrate that current policy analysis would benefit from applying greater analytical precision to the question of whether ? and why ? governments should act to open next-generation networks. Finally, the paper includes an addendum reviewing regulatory activity in February 2003.