**SEPARATE STATEMENT OF COMMISSIONER GLORIA TRISTANI**

> *Re: Applications for Consent to the Transfer of Control of Licenses
> and Section 214 Authorizations by Time Warner Inc. and America Online,
> Inc., Transferors, to AOL Time Warner Inc., Transferee*

I voted to approve the license transfers involved in the AOL and Time
Warner merger because the conditions imposed to serve the public
interest were the best that could be achieved under the circumstances,
and tipped the balance narrowly in favor of approval. I urged my
colleagues to adopt open-code interoperability as a fundamental
component of the public interest in the Internet communications era. I
believe that interest compelled the merged company to achieve, and
publish, interoperability protocols by a date certain.[^1] I write
separately to distinguish the outcome for which I cast my vote, from the
policy of Internet openness I urged.

### I. [Framing the Internet Openness Problem Presented by this Case]{.smallcaps}

> But if I bought a radio and found that it accessed only certain
> stations and not others, I'd be upset. I suppose I could have a half
> dozen radios, one for each set of stations. It makes no more sense to
> have a half dozen computers or different operating systems or browsers
> for Web access. This is not just impractical; it fragments the Web,
> making it cease to be universal.[^2]

What began as an inquiry into the blocking of text-based instant
messages[^3] ("IM") sent to AOL customers, became instead an inquiry
into whether the migration of this business practice, and the
proprietary code upon which it depends, to Time Warner's cable platform,
would contravene the public interest in an open, interoperable Internet.
We concluded the evidence in the record demonstrated AOL's business
practice of controlling the flow of information to and from its
customers would create unacceptable bottlenecks in the broadband world
of high speed, interactive communications services.

AOL's use of proprietary code to filter out both unwanted incoming and
outgoing messages confronted this agency with a new digital-era problem:
communications infrastructure control that is no longer limited to
opening or closing access to physical networks. The marriage of cable
network hardware with the proprietary protocols necessary to access the
virtual network of listeners and speakers using the Internet provides
the possibility of complete control over a consumer's incoming receipt
of content and outgoing speech. Because the record disclosed this code
is an essential input for the future development of many, if not most,
new IM-based services, and these new services will require cable modem
access to the broadband pipe provided by the Time Warner network, the
extent of the *future* threat was readily cognizable.[^4] This
Commission has not previously confronted a situation where a corporate
consolidation squarely presented a commercial party's refusal to allow
its system to interoperate with its competitors thereby distorting a
worldwide pathway of communication.

A.  **Factual Background of the Parties' Physical and Virtual Networks**

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1.  *The Physical Network Assets*[^5]

Time Warner, the second largest cable provider in the country, serves
12.7 million subscribers through cable systems that pass approximately
21 million homes and serves approximately 18.9 % of the 67 million cable
subscribers nationwide. Time Warner also offers Internet access over its
cable systems through Road Runner, a joint venture that provides
high-speed Internet access and content optimized for broadband networks
to more than 1.1 million subscribers. Time Warner serves businesses
through Time Warner Telecom, Inc. ("TWT"), a facilities-based
communications provider serving large businesses. TWT offers businesses
"last mile" broadband connections for data, high-speed Internet, local
voice and long-distance services. TWT is certified to offer
telecommunications services in 21 metropolitan areas in 12 states.

2.  *The Virtual Network Assets*[^6]

AOL is the world's largest Internet Service Provider ("ISP"), and serves
about five times as many narrowband subscribers as its nearest
competitor. AOL's large subscriber base and its ability to attract and
hold its members to the services and information provided by AOL itself,
as opposed to having them go to other sites on the World Wide Web, is
highly valued.[^7]

Instant messaging, in its current form, enables the almost instantaneous
exchange of short, private, individualized text messages over the
Internet between two users each of whom is on the other's "buddy list."
AOL has an estimated 150 million users worldwide on its IM services.[^8]
More than 30 million individuals use IM at least once a month, and AOL
transmits almost five times as many IMs a day as it does e-mails.[^9]

An essential input[^10] to an IM service is the provider's Names and
Presence Database or "NPD."[^11] The names and presence detection
information enables users to know other users are online or available
and permits messages to be addressed and delivered. The actual NPD
consists of two parts. First, it is a database of the users' unique IM
names and addresses and, second, it has a "presence detection" function.
Presence detection is the IM provider's knowledge, and its ability to
inform others, that a particular user is online and the bandwidth
capacity of that user. This also signals that the user is available to
engage in instant information exchange.

The NPD is the asset that allows a virtual communications network for
persons who have requested participation in the network to exchange
communications in real time with other users. Use of an NPD, together
with the high bandwidth infrastructure provided by the cable network,
will transform the Internet experience by replacing today's static pages
of information with dynamic and interactive content.[^12] The Report and
Order characterized these new applications and services as advanced
IM-based high-speed services ("AIHS").[^13] It is these services that
were the focus of the interoperability condition.

B. **The Instant Messaging Market has "Tipped" Towards an AOL Monopoly**

The market in text-based instant messaging is characterized by strong
"network effects," *i.e.*, a service's value increases substantially
with the addition of new users with whom other users can communicate.
AOL, by any measure described in the record, is the dominant IM provider
in America. It was also uncontested that AOL has consistently resisted
interoperability with other non-licensed IM providers.[^14] AOL's market
dominance in text-based messaging, coupled with the network effects and
its resistance to interoperability, has established a very high barrier
to entry for competitors that contravenes the public interest in open
and interoperable communications systems.

Recent literature suggests that near monopoly outcomes in markets
exhibiting strong network effects are "tipped markets."[^15] Here, we
declined to opine "whether the factual conclusions \[regarding
text-based instant messaging\] in this *Order* can be characterized as
amounting to a tipped market or not."[^16] However, in 1999, various
non-AOL IM providers repeatedly attempted to gain access to AOL's NPD in
order to pass messages between customers of AOL and other services. AOL
blocked these attempts.[^17] At the *en banc* hearing in this proceeding
in July 2000, AOL's representatives said that protocols that allowed the
messages to flow freely could not be achieved until July 2001 at the
earliest.[^18] AOL's competitors contended AOL could have ceased
blocking competitor's messages immediately and achieved open protocols
for interoperability in less time.[^19] AOL's stark refusal to
interoperate with its competitors, and the timeline for achieving
interoperability cited at the *en banc* hearing, represented an apparent
change in strategy.[^20] The most reasonable inference was *AOL's
strategy switch from openness to blocking* *was a business decision
rather than one based on technical concerns*.[^21]

If AOL's competitors, taken together, represented marketshare close to
AOL's size, an equilibrium would have existed that would have made
interoperability the most effective business strategy for all competing
services because interoperability would have provided access to the
maximum number of people. Each service would thereby be more useful and
valuable because its users could have accessed more people. However, if
one of the interoperating providers wanted to dominate the market, it
could close its network and adopt a strategy of refusing to
interoperate. Such a business practice would seem to make its service
less valuable and hurt its users by cutting them off from the bigger,
interoperating network of users. But, if the provider refusing to
interoperate had a big enough share of the market *prior* to refusing to
interoperate, any loss in value or harm to its business would be
relatively slight because its customers would still be able to reach
most other users. And when it closed its network to the clients of the
smaller providers, the refusal to interoperate would result in
defections from the smaller services to the dominant one. This would
further swell the dominant provider's NPD and shrink the smaller ones.
Without interoperability no smaller provider could catch up to the
largest one.

This is precisely the business strategy that a premerger AOL undertook.
Under these conditions AOL's strategy of refusing to interoperate was
profitable because the incentive to switch to the largest provider could
hardly be resisted. The economic and antitrust literature generally
acknowledge that the only motive for a provider to close its network and
refuse to interoperate is to cause the market to tip in its favor. After
the point of tipping has been passed, the largest network will continue
to grow at the expense of the smaller networks until it is the dominant
network, perhaps possessing monopoly control. From that point forward,
the dominant network remains dominant, not necessarily because it
charges the lowest prices, offers the best quality, or offers innovative
features that customers want, but simply because in the past it gained
the most users.[^22]

This is not merely sharp business practice\--it contravenes well-settled
federal communications policy that is equally applicable to a *virtual*
communications pathway as to a *physical* one. As the Supreme Court said
many years ago,

> The First Amendment\'s command that government not impede the freedom
> of speech does not disable the government from taking steps to ensure
> that private interests not restrict, through physical control of a
> critical pathway of communication, the free flow of information and
> ideas.[^23]

A premerger AOL demonstrated both the ability and the economic incentive
to exploit its proprietary protocols and its large subscriber base to
position itself as an informational gatekeeper. Based on the foregoing,
and in particular on AOL's change from a policy of interoperability and
openness to blocking incoming and outgoing communications, I would have
concluded the narrowband IM market had tipped.[^24] Because the "tipped
market" will more likely than not persist in the broadband space, the
record called for a mandate compelling meaningful Internet openness in
the broadband space by a date certain.[^25] The principle of openness I
urged here, has been elegantly expressed elsewhere:

> Competition should be the policy. And code that enables competition
> should be the rule.[^26]

The new company's control over both the network served by Time Warner's
cable plant and the code-based NPD applications of AOL, when combined
with the aforementioned business practices, established it will possess
*virtual* *and physical* bottlenecks in the new world of high speed
services. New applications that require real time functionality will
require an NPD to work, thus an NPD encased in a proprietary-code shell
means the owner controls a virtual bottleneck analogous to the cable
operator's control over its physical network. This Agency's history and
Congressional directives in the 1996 Act compelled us to closely
scrutinize and ultimately reject such an outcome.[^27]

**II. [An Open and Interoperable Internet Serves the Public
Interest]{.smallcaps}**

> Incompatibility between computers had always been a huge pain. . . .
> .the real world of high energy physics was one of incompatible
> networks, disk formats, data formats, and character-encoding schemes,
> which made any attempt to transfer information between computers
> generally impossible. The computers simply could not communicate with
> each other. The Web's existence would mark the end of an era of
> frustration.[^28]

Widely regarded as the creator of the Internet, Tim Berners-Lee has
repeatedly stressed the Internet's openness and interoperability as its
principal feature and virtue. From its inception the Internet was
designed to avoid the interoperability problem that we confronted in
this case.[^29] Like the legacy industry examples used by Mr.
Berners-Lee, the Internet is a communications network; unlike the
communications networks before it however, the Internet depends on both
physical interconnection and code-based interoperability.

A.  **Interoperability Furthers Competition and is Consistent with
    Congressional Objectives of an Open and Vibrant Internet**

Several extant congressional objectives support an open and vibrant
Internet. First, Congress established a clear national policy to
"promote the continued development of the Internet" and "to preserve the
vibrant and competitive free market that presently exists for the
Internet and other interactive computer services unfettered by Federal
or State regulation."[^30] Concurrently, Congress charged the Commission
with "encourag\[ing\] the deployment on a reasonable and timely basis of
advanced telecommunications capability to all Americans."[^31]
Deployment of such capability facilitates the use of advanced services,
of which residential high-speed Internet access services are one
kind.[^32]

In addition to explicit provisions regarding high-speed services and the
Internet, concerns about the integration of video programming content
and the cable conduit are contained in statutory provisions and
Commission rules, such as the horizontal ownership cap and the channel
occupancy rules.[^33] Thus, apart from a competition analysis, the
public interest impact of combining AOL's virtual, code-based network
assets as described above, with the extensive cable and content assets
of Time Warner compels a policy that considers *inter alia,* "cable
communications provide and are encouraged to provide the widest possible
diversity of information sources and services to the public,"[^34] and
"promot\[ing\] competition in the delivery of diverse sources of video
programming."[^35]

Finally, the Supreme Court has repeatedly emphasized the Commission's
duty and authority to promote diversity and competition among media
voices: "It has long been a basic tenet of national communications
policy" that "the widest possible dissemination of information from
diverse and antagonistic sources is essential to the welfare of the
public."[^36] The Commission's interest in "promoting widespread
dissemination of information from a multiplicity of sources" is "an
important governmental interest."[^37]

**B. The Condition Imposed in this Case Seeks to Preserve Internet
Openness and Serves the Policies Favoring Competition**

The *Report and Order* bars the merged company from offering a new
service that utilizes both AOL's NPD *and* Time Warner's cable assets
until it has achieved interoperability with at least some of its
competitors.[^38] Thus, the outcome most threatening to the free flow of
information and consumer choice, where the tipped market in the text
based instant messaging world migrates to the broadband world of
high-speed services, would appear to be mitigated if not avoided. But,
the best public interest outcome, maintaining the openness that has
characterized the Internet since its inception, was not guaranteed. The
condition, rather than ensuring the best outcome, instead sought to
avoid the worst. It is in this sense that my approach differed from my
colleagues.

First, under the bar-the-worst-approach, the new company may decline to
offer the new service that triggers the requirement that they achieve
interoperability. Under this scenario there is no interoperability and
little, if any, public interest benefit arising from the condition.

Second, if the merged company chooses to offer the new service, they may
do so by entering into contracts with no less than three competitors who
offer NPD-based services. This outcome achieves *contractual
interoperability rather than code-based interoperability*. In other
words, if the competitors agree to use the merged company's proprietary
code, they actually expand the market-domination of this code rather
than *interoperate* with that code. This is not open interoperability
like that which makes email work today. To the extent applications
running on AOL's proprietary protocols proliferate, the applications
consumers desire will likely be bound in some way to AOL and its
contractors. If these protocols are proprietary and closed, the
competitive landscape of the Internet world might soon look like the
competitive landscape of the software operating system world.[^39]
Because the Internet is a critical pathway for information
dissemination, this outcome would foreshadow precisely the kind of
improper private control of communications infrastructure the Supreme
Court has repeatedly rejected.[^40]

Third, the merged company may offer the new, high-speed service using
its combined assets if it achieves server to server interoperability
using a public, published protocol that bears the approval of
appropriate international standard setting bodies. This is the outcome
that best serves the public interest in open communications systems,
provides consumers with the maximum number of choices and most
completely deconstructs the "tipped market" that favors anti-competitive
business practices. It is the only outcome in the *Order* that ensures
interoperability based on open, non-proprietary code.

I supported the overall scheme adopted in the *Report and Order*, in
part, because it also set forth several policy features applicable in
future mergers. First, we soundly rejected private, corporate control of
the Internet protocol pathway. Second, we rejected the facile assumption
that business practices based on proprietary code that create
informational bottlenecks on the Internet somehow serve the public
interest. Third, the merged company must achieve interoperability at the
time it seeks to utilize its combined assets, and not before. This
avoided a ham-handed result (not unknown in general rulemakings in the
world of converged technologies) that would be inconsistent with our
obligation to carefully tie the condition to the facts of the case.[^41]
Fourth, if the commercial realities in the converging broadband space
discussed in this record have materially changed, and clear and
convincing evidence establishes the public interest in maintaining the
bar on the new service offering has thereby dissipated, relief from the
terms of the Order is a fair outcome for consumers and the parties.

III. **[Conclusion]{.smallcaps}**

Ensuring the continued viability of an open, interoperable Internet does
not constitute "regulation" in the traditional sense.[^42] Ensuring
interoperability, far from regulating the Internet, actually blocks *de
facto* regulation of the Internet by a private corporation through a
combination of a cable bottleneck, proprietary code, network effects and
the high consumer cost of switching to a competing service.
Interoperability combats centralized control of speech and ultimately,
severely restricts both government and corporate power to control the
speech transmitted on the Internet. Arguing against interoperability in
this case is akin to arguing against the pro-competitive,
interconnection policies the FCC has historically pursued and that are
present in the requirements in the 1996 Act.[^43]

The rise of the commercial Internet, as this case demonstrates, does not
confound application of the existing federal policies that require
interconnection and interoperability of communications systems. In fact,
ensuring code-based interoperability goes hand in hand with the
Commission's fundamental obligation to ensure that our communications
infrastructure serves the public interest, assists the development of
the Internet, and sparks competition and innovation. The mandate that
such systems serve the public interest, in the context of this case,
compelled action to ensure that the Internet remains open and vibrant.
Here, we took the initial steps towards preserving that openness. Only
time will tell whether these efforts will be sufficient.

[^1]: I believe the record demonstrates this condition should have been
    mandatory. *See Report and Order* at Paras.169-70; 192 (identifying
    open protocol approach to achieving interoperability).

[^2]: Tim Berners-Lee, [Weaving the Web]{.smallcaps}*,* at 132 (Harper
    Business Books 1999).

[^3]: *See Report and Order* at Paras. 10; 134-35 (describing markets,
    defining IM services and NPD).

[^4]: *See Report and Order* at Paras. 176-81; *see also Steadman v.
    SEC*, 450 U.S. 91 (1981) (affirming agency action on a preponderance
    of the evidence standard).

[^5]: *See Report and Order* at Paras. 27-46 (Time Warner and AOL
    assets).

[^6]: *See Report and Order at* Paras 27-46 (assets); 128-45 (defining
    and describing instant messaging; advanced IM-based high speed
    services; Names and Presence database).

[^7]: *See Report and Order at* Para. 8, n.12.

[^8]: Some observers put the total number of registered IM service users
    under AOL's control at over 150 million. Tribal Voice Comments at
    1-2 (120 million); Julia Angwin, *Instant Messaging Services at AOL
    Quietly Linked*, [Wall St. J]{.smallcaps}., Oct. 26, 2000*,* at B-1,
    B-4 (138 million); Jim Lynch, *Instant Messaging Roundup,* MSNBC
    Technology, Aug. 18, 2000, at http://www.msnbc.com/news/447786.asp
    (visited Aug. 28, 2000) (more than 150 million users); Nick
    Wingfield, *Changing Chat,* [Wall St. J.]{.smallcaps}, Sept. 18,
    2000, at R-28 (154 million registered users).

[^9]: *IM Interoperability: The Need for Minimum Safeguards* at 2, White
    Paper filed herein ("First IM White Paper") under Letter from Ross
    Bagully, President and CEO, Tribal Voice, and Margaret Heffernan,
    President and CEO, iCast, to Magalie Roman Salas, Secretary, FCC,
    dated Sept. 5, 2000 ("Tribal Voice and iCast Sept. 5 Ex Parte");
    Nick Wingfield*, Changing Chat*, [Wall St. J.]{.smallcaps}, Sept.
    18, 2000, at R-28.

[^10]: *See Report and Order* at n.376 (defining "essential input").

[^11]: *See, e.g.*, Letter from Karen B. Possner, Vice President --
    Strategic Policy, BellSouth Corp., to Magalie Roman Salas,
    Secretary, FCC, dated Oct. 10, 2000, Attachment (BellSouth's Views
    on the Effect of the Proposed America Online-Time Warner Merger on
    Instant Messaging and Related Capabilities) at 1.

[^12]: *See, e.g.*, George Gilder, [Telecosm: How Infinite Bandwidth
    Will Revolutionize Our World]{.smallcaps} 252 (2000); Francois Bar
    et al., *Access and Innovation Policy for the Third-Generation
    Internet*, [Telecommunications Policy]{.smallcaps}, July-Aug. 2000,
    at 7.

[^13]: IM-based services are relatively new but have shown enormous
    growth in popularity in recent years. Their key characteristics are
    the capabilities to detect whether other users of the system (whose
    names are kept in a Names and Presence Database) are present online
    and to exchange messages with them in real time. These features are
    predicted to have vast potential as a "platform" for the development
    of additional applications in the future, particularly as users
    obtain high-speed Internet access.

[^14]: *See Report and Order* at para. 170. AOL contends it currently
    cannot adequately protect its customers' privacy and security.

[^15]: *See, e.g.,* Andrew Watson, *Predatory Pricing in the Software
    Industry*, 23 [Rutgers L. Rec]{.smallcaps}. 1 (1998) (*citing* David
    S. Evans and Richard Schmalensee, *A Guide to the Antitrust
    Economics of Networks*, 10 [S]{.smallcaps}pring
    [Antitrust]{.smallcaps} 36, 36-37 (1996)).

[^16]: *See Report and Order* at n.368.

[^17]: iCast Comments at 1; Disney July 25 Ex Parte at 27-28; Aaron
    Pressman, *Microsoft Messenger Finds Its Voice* at 2, [The
    Standard,]{.smallcaps} July 20, 2000.

[^18]: FCC En Banc Hearing, CS Docket No. 00-30 (July 27, 2000), Tr. at
    167-68.

[^19]: *See, e.g.,* Confidential Appendix IV-B-2, Note 5; Tribal Voice
    Aug. 8 Ex Parte at 1-2; *see also White Paper on Instant Messaging,*
    at 3 (Filed September 5, 2000).

[^20]: *White Paper on Instant Messaging,* at 11 (Filed September 5,
    2000).

[^21]: *See Report and Order* at Paras. 168-70 (rejecting AOL
    contentions).

[^22]: *But see Report and Order* at n.425: "Ultimately, new technology
    may overcome the dominant provider's power, as the telephone did to
    the telegraph and airplanes and automobiles did to railroads. Many
    years can pass, however, before a new technology appears with enough
    advantages to overcome the entrenched one. That technology, too, may
    be deployed by the dominant incumbent, who will deploy it slower
    than a new entrant would. Finally, some technologies persist for
    very long times, such as the QWERTY keyboard."

[^23]: *See Associated Press v. United States*, 326 U.S. 1, 20 (1945);
    *see also Associated Press v. NLRB*, 301 U.S. 103, 128 (1937)
    (Noting that the A.P.\'s activities "involve\[d\] the constant use
    of channels of interstate and foreign communication," and concluding
    its operations "amount\[ed\] to commercial intercourse, and such
    intercourse is commerce within the meaning of the Constitution.").

[^24]: This Agency has previously defined tipping as "the tendency for a
    \[service\] with an initial edge over incompatible, rival systems to
    become an industry standard and thus achieve market dominance." The
    service with the edge can attain a monopoly position, with its
    rivals relegated to a fringe position. *AT&T Corp., British
    Telecom.,PLC, VLT Co. L.L.C., Violet License Co. LLC, and TNV
    \[Bahamas\] Ltd*., *For Grant of Section 214 Authority, Modification
    of Authorizations and Assignment of Licenses in Connection With the
    Proposed Joint Venture Between AT&T Corp. and British
    Telecommunications, plc*, IB Docket No. 98-212,
    SES-ASG-19981110-01654 (30), SES-ASG-19981110-01655 (2), Memorandum
    Opinion and Order, 14 FCC Rcd 19140, 19167 ¶ 54 (1999) (footnote
    omitted); *see also* Stan J. Liebowitz and Stephen E. Margolis,
    [Winners, Losers and Microsoft]{.smallcaps} at 138 (1999) ("Tipping
    occurs when a product subject to increasing returns generates
    sufficient momentum in market share that its domination of the
    market becomes inevitable.").

[^25]: *See, e.g., Report and Order* at n.368 (noting the majority
    expressed no opinion on "tipping"); *see also* Paras.175-176.
    Tipping has occurred before in the entertainment and communications
    markets. In the mid-1980s, the consumer videocassette
    recorder/player market tipped in favor of VHS and against Betamax.
    In the local telephone business, it appears that tipping occurred
    shortly before 1910, when the Bell companies and the independents
    with whom it interconnected attained a significantly larger number
    of telephone customers than the independent telephone companies with
    whom Bell companies refused to interconnect. In both cases, after
    tipping the market was dominated by one standard or network.

[^26]: *See* Lawrence Lessig, *Cable Blackmail*, The Standard, Nov. 14,
    1999.

[^27]: *See* Telecommunications Act of 1996, Pub. L. No. 104-104, 110
    Stat. 56 §§ 1, 230 (b)(1, 2), 47 U.S.C. §§ 151, 230 (b)(1, 2). *See
    also WorldCom-MCI Order,* 13 FCC Rcd at 18103-04 ¶ 142 (reviewing
    competitive effects of merger on provision of Internet backbone
    services).

[^28]: *See Weaving the Web,* at 35*; see also id.* at 99 ("The
    international phone system offers a decent analogy. The reason we
    can plug in a telephone pretty much anywhere in the world is because
    industry agreed on certain standard interfaces. \* \* \* The phone
    system defines what it has to, but then leaves how it is used up to
    the devices*.*").

[^29]: The Internet protocols necessary to achieve interoperability for
    such services as email, are called the Transmission Control
    Program/Internetworking Protocol ("TCP/IP"). These protocols are
    open and non-proprietary. The open protocols utilized on the
    Internet are routinely recognized as the historical key to its
    openness and rapid growth. Since commercialization of the Internet
    has begun in earnest, there is a threat that the Internet will
    fragment into a digital archipelago of closed networks the
    communications between which are controlled by private entities.

[^30]: 47 U.S.C. § 230(b)(1)-(2).

[^31]: 47 U.S.C. § 157; *see also id.* § 1 (FCC was created "so as to
    make available, so far as possible, to all people of the United
    States . . . a rapid, efficient, Nationwide, and world-wide wire and
    radio communication service with adequate facilities at reasonable
    charges"). Congress defined "advanced telecommunications capability"
    as "high-speed, switched, broadband telecommunications capability."
    47 U.S.C. § 157.

[^32]: *See, e.g.*, *Second Inquiry Concerning the Deployment of
    Advanced Telecommunications Capability Pursuant to Section 706 of
    the Telecommunications Act of 1996*, CC Docket No. 98-146, Second
    Report, FCC 00-290 (rel. Aug. 21, 2000) at ¶ 3 ("*Second 706
    Report*") (noting that "\[w\]ith advanced telecommunications
    capability consumers can take advantage of advanced services that
    allow residential and business consumers to create and access
    content, sophisticated applications, and high-bandwidth services").

[^33]: *See, e.g.*, 47 U.S.C. §§ 533(f), 548; 47 C.F.R. §§ 76.503,
    76.504, 76.1000-76.1004; *AT&T-MediaOne Order*, 15 FCC Rcd at 9835 ¶
    38.

[^34]: 47 U.S.C. § 521(4).

[^35]: 47 U.S.C. § 523(a).

[^36]: *Turner Broadcasting System, Inc. v. FCC*, 512 U.S. 622, 663
    (1994) (*quoting United States v. Midwest Video Corp.*, 406 U.S.
    649, 668 n.27 (1972)).

[^37]: *Turner Broadcasting System, Inc. v. FCC,* 512 U.S. 622, 663
    (1994); *see also id.,* 512 U.S. at 657 ("\[T\]he potential for
    abuse of this private power over a central avenue of communication
    cannot be overlooked."); *Review of the Commission's Regulations
    Governing Television Broadcasting: Television Satellite Stations
    Review of Policy and Rules*, 14 FCC Rcd 12903, 12910-916 (1999);
    *see also Red Lion Broadcasting Co. v. FCC*, 395 U.S. 367, 390
    (1969) ("It is the purpose of the First Amendment to preserve an
    uninhibited marketplace of ideas in which truth will ultimately
    prevail, rather than to countenance monopolization of that market,
    whether it be by the Government itself of a private licensee.");
    *see also, e.g.*, 47 U.S.C. § 257(b) (noting that one of the
    "policies and purposes" of the Communications Act is to "favor\[\]
    diversity of media voices"); *id.* § 601 (codifying findings and
    policy underlying Cable Television Consumer Protection and
    Competition Act of 1992) ("There is a substantial governmental and
    First Amendment interest in promoting a diversity of views provided
    through multiple technology media."); *AT&T-MediaOne Order*, 15 FCC
    Rcd at 9818-20 Paras. 3-5 (considering proposed merger's effects on
    "diversity and competition" in video programming and its effects on
    "openness and diversity of broadband Internet content").

[^38]: *See Report and Order,* at Paras. 191-95.

[^39]: *See e.g United States v. Microsoft,* 87 F.Supp.2d 30 (D.C.)

[^40]: *See infra nn.36-37; see also, e.g., United States v. AT&T,* 524
    F. Supp. 1336 (D.D.C. 1981) (detailing the discrimination of the
    Bell System local telephone companies against their competitors in
    terminal equipment, long distance, and other products and services
    for which access to local lines was necessary). Similar concerns
    also underlie the provisions concerning "program access" by cable
    television companies (Communications Act § 628, 47 U.S.C. § 548) and
    Bell re-entry into interexchange service (Communications Act §§
    271-72, 47 U.S.C. §§271-72). *See also* James W. Olson and Lawrence
    J. Spiwak, *Can Short-Term Limits on Strategic Vertical Restraints
    Improve Long-Term Cable Industry Market Performance?*, 13 [Cardozo
    Arts & Ent. L.]{.smallcaps}J. 283 (1995).

[^41]: *See, e.g., Report and Order* at Para. 186. To continue Congress'
    goal of achieving vibrant competition in high speed services, we
    avoided the calls for a one size fits all traditional rulemaking on
    interoperable Internet communications networks. If the Commission
    had allowed the inevitable time delay that arises in a general
    rulemaking, the outcome would have come so late in the day as to be
    meaningless.

[^42]: *Compare* Dissenting Statement of Commissioner M. Powell at 13.

[^43]:
    ####  *See, e.g.,* Amendment of Sections 64.702 of the Commission\'s Rules and Regulations (Third Computer Inquiry), 104 F.C.C.2d 958 (1986) (Report and Order)(requiring AT&T, the long-distance monopolist, to open its basic network facilities to enhanced service providers); *See also* *id.* at 1006(mandating an \"Open Network Architecture\" that would \"permit all users of the basic network \... to interconnect to specific basic network functions and interfaces on an unbundled and \'equal access\' basis.\"); Amendment of Sections 64.702 of the Commissions Rules and Regulations (Third Computer Inquiry), 104 F.C.C.2d 958, 1022 (1986) (Report and Order)(noting the Open Network Architecture would permit the agency to "rely on interconnective technology, rather than external regulations, to minimize the competitive and efficiency dangers of bottleneck control.")