Whatever the merits of ISP choice, there is no restriction on access to any content on the Internet with cable-modem service. This is the most important point, the point that cable's harshest critics seem to slide over.
And the ISP-access debate is not, or should not be, about whether residential bandwidth users pay for home service but use it for business Any kid who has been caught holding the exit door open for his friends to sneak into the movie theater knows that his delinquency has nothing to do with freedom of speech.
Two other things that this access debate is not about. One, the cable operator does not use ownership of the last mile or backbone to protect copyrights that it may own or wish to protect. Cable is not peering into traffic to see whether somebody is sending an unauthorized copy of Lord of the Rings. Nor is the debate is about denying service to so-called video-on-demand streamers.
It is important to see how narrow the rest of the discussion really is, then, in terms of diversity of expression in this medium of communications.
Unlimited ISP access could lead to more competition in price, although, given the available technology, narrowband ISP entry is a far less costly business than providing broadband. Then, too, privacy laws may apply differently to cable vs. unaffiliated ISPs. A foreign-language ISP might make a difference in deciding to use broadband. (But this would seem to be easily fixed with a reset to a new, non-English start home page.) Plus, the ISP might offer a different set of highlighted go-to Web sites than would the cable's opening page.
But the costs of a government-imposed scheme would be considerable. Our experience with the history of carrier regulation tells us this. Regulation under Title II of the Communications Act—the repository of federal carrier law for over three-fourths of a century—has been characterized in the past 30 years as a march away from access and price regulation.
Some might say there is a version of carrier "regulation lite" that could be bloodlessly imposed. This is folly. The yoke of access regulation must be teamed with a yoke for price regulation. If parties cannot agree on price, the government must step in and decide it for them. And when it tries, it enters the long, long tunnel of cost-of-service regulation. That's a tunnel that has nearly all the existing common carriers marching, no, stampeding in the other direction.
Having nursed into existence more than 200 TV networks that didn't exist 25 years ago, the cable industry has, I submit, a defensible record in creating content diversity in American culture. It led residential broadband development and pushed the phone companies to offer their own DSL service. So far, so good. So, for now, leave it be.
(Excerpted from a Quello Center Symposium Michigan State/Detroit College of Law article discussing the impact of forced third-party Internet service provider (ISP) access to cable-modem service)