Reps. Bob Goodlatte, R.-Va., and Rick Boucher, D.-Va., last year introduced legislation that among other things would have applied open access requirements across all high-speed platforms, including cable. That legislation is stuck in the House Judiciary Committee, where Chairman Henry Hyde, R-Ill., and others have raised objections.
In a letter to FCC Chairman William Kennard and Federal Trade Commission Chairman Robert Pitofsky, the representatives wrote: "It has become clear that Congress is unlikely to act on our legislation."
Goodlatte and Boucher argued, however, that the FCC is the perfect forum for open access, saying "it is critical that the FCC act immediately to formulate effective open access policies."
Open access has gained attention as the FTC and FCC have looked at going beyond the commitment made by AOL and Time Warner to open the latter's cable property to competitors and instead mandating open access as a condition of merger approval.
Goodlatte and Boucher said that while they remain strong proponents of open access, "placing conditions on any single merger before that evaluation is complete would be premature. No federal agency should be picking winners and losers in the high-speed Internet marketplace."
"Forcing a merged AOL Time Warner to allow competitors access to its cable systems while allowing those same competitors to refuse AOL-Time Warner access to their networks would place AOL Time Warner at a crippling disadvantage," the representatives said.
The representatives join a long line of politicians and consumer groups that have called on the FCC to rule on open access. The calls have increased since the city of Portland, Ore., lost a decision in the 9th U.S. Circuit Court of Appeals in San Francisco that said only the federal government had the jurisdiction to impose open access.
"In the wake of the 9th Circuit decision of last week, it has become clear to me that the FCC will have to address the issues raised by the court," Kennard said at a news conference in June shortly after the decision. The commission still has not ruled, however.
Kennard has been resistant on that topic, maintaining that broadband is in its infancy, and regulators should hold back until the market has had enough time to develop. He has made clear, however, that he wants to see cable companies open their plants to competitors, and that FCC policies in broadband will be guided by the principle of increasing access to everyone.
Goodlatte and Boucher argued that the AOL-Time Warner merger means the FCC can't afford to wait any longer.
"We are concerned that the application of such (open access) conditions without a comprehensive federal policy in place on this important issue could have detrimental effects on the current Internet marketplace," they wrote.