Open Access to Cable Data Networks

Abstract

The networks that are generically referred to as ?cable? today began their lives with a particular purpose: the distribution of television signals within a community. Given this history, cable networks have always operated under a regulatory regime separate from telephone networks?. Telephone systems are regulated as common carriers: telephone network services must be made available to all potential customers in a non-discriminatory fashion. Cable networks, in contrast, are not subject to the requirements of common carriage: cable system operators are under no legal obligation to make their networks available to anyone who wants to use them to distribute content (for example, a new television channel), and have in fact historically exhibited a high degree of vertical integration between conduit (cable networks) and content (TV channels). As ever more cable systems gain the capability to connect their subscribers to the Internet, this reality has sparked an intense legal wrangling and debate over the issue that is referred to as ?open access.? 1 Should cable systems with the capability to transmit data be required to allow any service provider to access customers through the cable network? Or is the current industry structure?in which service providers can only gain direct access to a cable system if they succeed in negotiating an agreement with the cable operator?a more appropriate way forward?