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71 U. Colo. L. Rev. 975 (2000)
The Vertical Dimension of Cable Open Access

handle is hein.journals/ucollr71 and id is 1003 raw text is: THE VERTICAL DIMENSION OF CABLE
The debate over whether the owners of broadband internet
access systems should be required to provide open access has,
to date, largely focused on a single issue: whether cable televi-
sion companies will use their control over transmission to dis-
advantage unaffiliated internet service providers (ISPs) and
unaffiliated content providers. The debate has focused on cable
companies because cable companies currently lead the market
in providing broadband internet access and because cable com-
panies are not subject to the unbundling rules applicable to
monopolistic local telephone companies. AT&T and other cable
companies currently require their customers to purchase inter-
net services through an affiliated ISP. Although AT&T and
others permit a subscriber to access all of the content available
on the internet, open access advocates contend that cable com-
panies are forcing customers to pay twice and are endanger-
ing open and free competition in the internet. Moreover, cable
companies currently have in place certain use restrictions, such
as limits on broadcast-quality streaming video, that open ac-
cess advocates claim are unnecessary and anticompetitive.
The argument has centered almost exclusively on two is-
sues: whether cable companies will, for a relevant time, have
market power in a market for the delivery of high speed inter-
net access, and whether the cable companies' requirements
that customers purchase service through an affiliated ISP
* Assistant Professor, Northwestern University School of Law. My thanks
to Joseph D. Kearney for comments on early drafts, to the symposium partici-
pants for additional thoughts, and especially to Mark Cooper for the spirited de-
bate. I am also indebted to Scott Colwell and Margaret Kaplan for their valuable
research assistance. In the interest of full disclosure, I should state that before
entering legal academics in 1998, I was an attorney with Sidley & Austin and
worked on a significant number of matters representing AT&T, though not with
respect to any internet or cable matters. I have no continuing relationship with
AT&T (or any telecommunications company) except as a customer of its services.

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