Furchtgott-Roth, _Cable_TV:_Regulation_or_Competition?_ (Washington, D.C.: Brookings
Institution, 1996), 1-23; Porter Bibb, _It_Ain't_as_Easy_as_It_Looks:_Ted_Turner's_Amazing_
_Story_ (New York: Crown Publishers, 1993) (Ted Turner biography).

[10-11] By 1987, of the 87.5 million homes with TVs, 44.1 million (50.4 percent) were
cable subscribers. Currently about 66 percent of TV households in the country use
cable. Parsons and Frieden, 3, 121-122.

[10-12] For a summary, see Jerry Kang, _Communications_Law_and_Policy:_Cases_and_Mate-_
_rials_ (Gaithersburg, Md.: Aspen Law & Business, 2001), 154-161.

[10-13] Mark E. Laubach, David J. Farber, and Stephen D. Dukes, _Delivering_Internet_Con-_
_nections_over_Cable:_Breaking_the_Access_Barrier_ (New York: John Wiley, 2001), 11-12.
For a primer on DOCSIS and its history, see http://www.cablemodem.com/
DOCSIS.pdf.

[10-14] See, e.g., Federal Communications Commission, "In the Matter of Applications for
Consent to the Transfer of Control of Licenses and Section 214 Authorizations from
Tele-Communications, Inc., Transferor to AT&T Corp., Transferee, CS Docket No.
98-178," February 18, 1999, #89, available at http://www.fcc.gov/Bureaus/Cable/
Orders/1999/fcc99024.txt ("According to AT&T-TCI, any equal access conditions such
as those advocated by opponents to the requested transfers will impose substantial in-
vestment costs and expenses on @Home, which will only delay and diminish its deploy-
ment of broadband services to residential customers.").

[10-15] See Thomas Starr, John M. Cioffi, and Peter Silverman, _Understanding_Digital_
_Subscriber_Line_Technology_ (Upper Saddle River, N.J.: Prentice-Hall, 1999) (citing
1976).

[10-16] Comer, _Computer_Networks_and_Internets,_ 159.

[10-17] Throughout this section, by "telephone companies" I am referring to the regional
Bell operating companies (the RBOCs). Non-RBOCs are not subject to the same obliga-
tions of open access under the statute. See _AT&T_Corp._ v. _City_of_Portland,_ 216 F.3d 871,
879 (9th Cir., 2000).

[10-18] There are more traditional concerns as well. "Over the long term, the cable
providers' tying strategy will thus undermine competitive investment in both the broad-
band transport and portal markets, insulating cable providers from conduit and content
competition, and ensuring that the delivery of Internet-based video by competing con-
duits does not erode cable providers' monopoly power in the market for traditional video
programming." Daniel L. Rubinfeld and Hal J. Singer, "Vertical Foreclosure in High
Technology Industries: A Case Study of the AOL Time Warner Merger" (Rubinfeld-
Singer White Paper), 10. Rubinfeld believes the vertical integration of cable will create
an incentive to pursue two foreclosure strategies: (1) conduit discrimination; and (2)
content discrimination. Ibid., 29-30.

[10-19] See, for example, Cisco White Paper, "Controlling Your Network -- A Must for
Cable Operators" (1999), 5, available at http://www.cptech.org/ecom/openaccess/cisco1.
html, describing tools to effect discrimination. As one research report summarizes the
problem:

____ The situation is analogous to a customer trying to drive to the bookstore of their choice
____ only to find that roadblocks have been established to channel customers to another book-
____ seller, to the exclusion of all other booksellers. Unlike the roadway analogy, in the online
____ world the end user may not be aware that the roadblocks have been placed and may have
____ their behavior influenced without even knowing that the ISP has limited their ability to
____ choose.

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