Ensuring viability of open, interoperable Internet doesn’t consti...

interoperability actually “blocks de facto regulation of the Internet by a private corporation through a combination of cable bottleneck, proprietary code, network effects and the high consumer cost of switching to a competing service,” she said in statement setting forth her reasons for voting to approve deal. Referring to condition barring new AOL-TW from offering new service using AOL instant messaging service’s Names and Presence Database (NPD) and TW’s cable assets until it has achieved interoperability with at least 3 competitors, Tristani said best public interest outcome -- maintaining openness that has characterized Internet since its inception -- wasn’t guaranteed. Outcome most threatening to 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, not avoided,” she said. Rather than ensuring best outcome, condition sought instead to avoid worst, Tristani said in explaining how her approach differed from that of her colleagues: (1) New company, under “bar-the-worst-approach,” may decline to offer new service that triggers interoperability condition. “Under this scenario there is no interoperability and little, if any, public interest benefit arising from the condition.” (2) Merged company, if it chooses to offer new service, may do so by entering into contracts with no fewer than 3 competitors that offer NPD-based services. That would result in contractual interoperability rather than code-based interoperability because if competitors agreed to use new company’s proprietary code, they actually would expand market domination of that code rather than interoperate with it. “This is not interoperability like that which makes e-mail work today.” Merged company may offer new, high-speed service using its combined assets if it achieves server-to-server interoperability using public, published protocol that has approval of international standard setting bodies, Tristani said, and that’s outcome that best serves public interest. She said she supported overall scheme in Commission’s order in part because it set forth several policy features applicable to future mergers: (1) Commission rejected private corporate control of Internet protocol pathway. (2) It rejected “the facile assumption that business practices based on a proprietary code that create informational bottlenecks on the Internet somehow serve the public interest.” (3) Merged company must achieve interoperability at time it seeks to utilize combined assets, not before. (4) New entity would be relieved from ban on new service offering if it showed clear and convincing evidence that condition no longer served public interest, which Tristani said would be “a fair outcome for consumers and the parties.”