Veteran telecom legislator takes up "open access"

SAN FRANCISCO--When Rep. Ed Markey (D-Massachusetts) talks about Net policy, it's no surprise he speaks of sticking up for the underdog.

Since first winning election to the House in 1976, Markey has championed consumer protection and competition in the electricity, telecommunications, satellite, and cable industries. Like many Capitol Hill mainstays, he's now focusing on the Net.

For starters, Markey, who helped draft the landmark Telecommunications Act of 1996, is forging a campaign to open up the developing cable Net access market. He wants entrenched cable companies to give budding Net service providers access to their high-speed networks, which are becoming the linchpin for next-generation online content delivery and e-commerce. (See related story)

Markey isn't stopping with the pipes. As usual he wants to be out in front on consumer issues. Primarily, he is pushing legislation to shield privacy in the digital age by establishing fair information collection practices--forcing companies to get a person's permission before sharing or selling any data from health or financial transaction records, for example.

Perhaps he fights for the little guy because he knows what it feels like. He is the first to admit that taking on cable companies and passing new privacy legislation will be hard rows to hoe.

During a four-day retreat that kicks off in Silicon Valley tomorrow, however, Markey could get a chance to build support for his plans. Along with two dozen other members of Congress, Markey will attend a series of roundtable discussions with high-tech executives about the New Economy. The retreat was set up by bipartisan lobbying group the Technology Network and political action committee the New Democrat Network.

Getting a head start on his Bay Area tour, Markey sat down with CNET's News.com at the company's headquarters here and explained how the Net is drudging up both familiar and new debates when it comes to communications services.

News.com: You've spent a lot of time looking at opening up competition for telecommunications services. Do you think more needs to be done to open up the broadband Internet arena to competition?

Markey on open access

Ed Markey: I believe that broadband technology is a telecommunications service and that the cable companies should be obligated to provide access to that broadband technology to any of the Internet service providers.

The great revolution in the United States today is this small-company, entrepreneurial-driven revolution that has transformed our economy. Any attempts to create bottleneck control by the cable industry would tend to slow it down. It wouldn't stop it, of course.

Is this open-access requirement something that should be done by the companies themselves, or by the courts, or by Congress?
Well, the cable companies won't do it themselves because they have a stake in maintaining their own proprietary network. So ultimately it will have to either occur by federal law or by court decision. The city of Portland, Oregon, has brought a lawsuit--it's now on appeal. I would prefer for there to be a national policy of openness. But if the federal government isn't going to legislate, then I absolutely have to say that it doesn't bother me that Portland, and hundreds of other cities, would bring lawsuits trying to open up their own individual communities and set their own policies.

Is the Federal Communications Commission doing enough to ensure there is a competitive marketplace?
The FCC was a little bit slow in appreciating the potential bottleneck control that could be created. But now they've taken a step back after the second round of AT&T-cable company mergers, and I think [they] have begun to analyze it from a more realistic perspective in terms of the ultimately stultifying effect that those kinds of mergers could have upon thousands of Internet service providers.

Are you concerned at all that AT&T is growing too large?
I'm not as concerned that AT&T is growing big as I am that AT&T is in a position--in partnership with the cable industry--to create blockages to their networks. We've always known and in fact encouraged partnerships which would create real competition to the regional telephone companies and dual networks that would be accessible to every home in the United States. And ultimately, as a result, [this would lead to] more consumer choice and more rapid technological innovation.

My great concern is not the size of AT&T, because size is obviously something that is important in terms of making the necessary investments. What's troubling is when that size is used to create duopoly status with proprietary objectives rather than competitive, open-access objectives.

Do you think there is a realistic chance of getting any legislation through this year that modifies the Telecommunications Act?
I don't think there is. There are three ways you can look at Telecommunications Law. There are many people who believe the cable and

Markey on his bill to open cable

telephone networks should be closed. There are others in Congress who have actually proposed legislation which opens up the cable network but keeps the telephone network closed. And then there is the third perspective, which is mine, and I have to admit that I'm probably in the minority, which wants the telephone network open and the cable network open. The 1996 Telecommunications Act requires that the telephone network be open, and I'm proud that that's my language.

But I have drafted a Congressional resolution, which I'm going to be circulating, which will have the objective of gaining at least 100 members of Congress on a resolution calling for the cable networks to be open. At the end of the day, however, I don't think it's likely that any legislation will pass heading in either direction over the next year and a half. I'm about to introduce the legislation as soon as I return to Washington. It's something I think will end up with hundreds of Internet-based companies supporting [it], because obviously they have a stake in ensuring that the cable network is wide open.

You're pushing one of the most stringent online consumer privacy protection bills. Why do you think it's important for consumers to have more protection than, say, the Fair Credit Reporting Act already provides along with other sectoral privacy laws?
In order to protect privacy we need three things. First, we need companies to voluntarily protect privacy. Secondly, we need consumers to take advantage of available technologies. Thirdly, we need a minimum, fundamental platform on which every American can stand and that will have to be put on the books by law.

No one part of it is sufficient in and of itself. Each consumer will need all parts of that strategy to be fully protected. At the end of the day the price of admittance to e-commerce should not be the suspension of the privacy rights of Americans. Digital desperados should not have the ability to crack into the most private transactions of our lives, whether it be financial or health or any other online transaction that we might engage in.

Markey on consumer online privacy

One of the concerns I have is that the industry is very concerned about ensuring that every consumer has the strongest possible encryption from their home to the company. But at the same time I find that many aren't as concerned about ensuring that the information is protected once it's in the hands of the company. At that point, for some reason or another, many companies stop worrying about the privacy and security of the information. They begin to see it as a commodity to be used for their own purposes, rather than as a continuation of this relationship whether the security and the privacy of the individual and families are protected.

Companies complain that it would be too expensive to give consumers access to the records of personal information they have compiled about us from our shopping preferences, credit card numbers, mother's maiden name, and contact data. Do you think that is true?
No, I don't. I think if there could be some company started up by some 22-year-old on about three day's notice that would be able to disaggregate this information and provide it as a technology service to companies?they would be able to ensure that individuals could find out how this information is being used. I heard the same objections when I was mandating that every television in America had to have closed-captioning built into it. I was told it would cost $25 per TV set. And I contended that some 20-year-old would like to have the ability for $1 per TV set to build this into the 25 million TV sets that are sold in the Unites States. And that's what it costs today only seven years later.

What you have is the existing incumbent businesses that always resist any change--even if they are high-tech and right on the cutting edge. In this instance it would be relatively simple for most companies to provide the disaggregated information with regard to how individuals' information is being used.

Do you think the United States should adopt legislation similar to what the European Union has passed so that consumers have a specific governmental agency or body to contact to make privacy complaints, aside from making complaints to the Federal Trade Commission, when it comes to the exchange of their sensitive data over computer networks?
I don't think we need a separate agency. I think consumers should have the ability to complain to the FTC, but they should also have the ability to bring a private right of action if someone who has compromised [their] information reveals, [for example], that a prostate cancer or breast cancer or attention deficit disorder condition exists in their family, and they are selling that information and making money off of it. Because [if] pharmaceutical companies can contact you--even though you thought you had a personal relationship and you had been guaranteed that you did with a provider--then you should be able to sue. The privacy of your family when it comes to your health care and financial transactions should be paramount.

I went to a Web site the other day and just wanted to sign up to learn about airfare prices. But before I could sign up, they wanted my credit card number. Do you think that is a practice that should be regulated?
I don't know if that practice should be regulated, but there should be a law that says that that credit card information can never be communicated to any other party without your express approval. You should have an ability to protect that information. Too many of these companies substitute the posting of a privacy policy for the existence of actual privacy protections. They post the knowledge that this company will not protect your privacy. I think that to protect ordinary consumers, every company should have a responsibility to protect that information unless they have permission from a consumer to reuse it.