Who, in the end, has the right of way?

"A title of this hearing might be, 'A Funny Thing Happened on the Way to the Forum,'" quipped Rep. John Dingell (D - Michigan) last week. "We were well on the road to achieving a bill which could have had broad bipartisan support, could have addressed in a real way the concerns of the American people, had allowed the Bells [AT&T, Verizon, and Qwest] to enter into a national franchise, and to have achieved it in a way which would not only have been fair to American consumers, but which could have been broadly accepted throughout the industry [and] had support of members on both sides. It's interesting to note how close we were. Then all of a sudden, the wheels came off, and all of the lashings wrapped around the axle, and everything stopped."

The key problem which almost every lawmaker agrees must be solved, is the inherent incompatibility between the technological model of the Internet and the legal model of utilities regulation. Rep. Charles Pickering (R - Miss.) summed up the issue last week with these words: "When you are now talking about IP applications, it does not make sense to have a patchwork of thousands of localities, and 50 states, [each] regulating video in a different way."

On the surface, the development of a national franchising system seems like the optimum solution, a way for the territorial boundaries of the broadband Internet to follow along with its technological boundlessness. But such a characterization often assumes that the Internet is an organic entity unto itself, whose nature is to expand like the flow of water or the free flow of information. Opponents are cautioning that the Internet will always be based on business models, and that its evolution, like the flow of water in a river, will always be toward the least path of resistance to the greatest body...of revenue.

"By failing to include a buildout provision to ensure service-area parity between a Bell company entering a franchise area and the incumbent cable operator," explained Rep. Ed Markey (D - Mass.) last week, "the [Barton] bill allows a national franchisee to use public rights of way in a community, but serve only select neighborhoods within that community. One does not need a business degree to have a hunch that they will focus deployment on the 30% of the town that has 70% of the revenue potential."

As the bill is currently written, there is nothing which mandates that a national franchisee must cover the entire nation, or that specifies which parts of the nation franchisees must be certain to cover. Such an omission could conceivably enable franchisees to pick and choose the areas they wish to serve...in a manner similar to the way national candidates pick and choose the cities they campaign in. "Under the proposal," explained Markey, "an incumbent cable operator may...seek a national franchise after the phone company arrives in a franchise area, even if the phone company is serving just one household in the franchise area. The lack of a service area requirement at the national level then means that the incumbent cable operator no longer has to serve the entire franchise area."

Markey foresees a situation where a local franchisee, currently bound