In our "Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
Earlier this month in the Kinský v. the Czech Republic decision, the European Court of Human Rights unanimously expressed its disapproval of governmental attempts to influence domestic judicial proceedings, as incompatible with fair trial standards set out in the European Convention on Human Rights.
The case was one of over a hundred mainly unsuccessful law suits brought by a member of the former Czech nobility, seeking the restoration of property confiscated after World War II. The property in question is now worth around €2bn, while a successful claim could lead to further cases being launched by others in the Czech Republic. While the proceedings were still pending, a number of statements were made by public officials suggesting that for people like Mr. Kinský and his family, who had “demonstrably” been Nazis, no restitution should be available. The claim was eventually dismissed by the district court as well as by the Czech Supreme Court.
Subsequently, the Justice Ministry officially requested the regional courts handling Mr. Kinský's applications to regularly report on these proceedings—and the courts did just that. In the same year, a special police task force was set up on property restitutions, which placed Kinský under criminal investigation on suspicion of withholding evidence in his civil law suit against the state. During the investigation his lawyer’s phone was tapped and his legal research was secretly examined. When finding out about the surveillance by chance, Kinský lodged a constitutional complaint, which resulted in a decision quashing the telephone monitoring order and requesting the destruction of all records. The Czech Constitutional Court specifically stated that “the State had attempted to improve its position in the civil proceeding by acquiring information through the police investigation.”
When a court upheld one of Mr. Kinský’s claims in another case, the Minister of Culture went as far as stating that “judges deciding in a similar way would have to ‘bear full responsibility’ for the State being obliged to surrender property.” Since then, none of Mr. Kinský‘s actions have been successful.
The European Court found that these statements from the highest political circles— and the applicant's subsequenl lack of success at court—called into question the tribunal’s independence and impartiality.
The court also criticised the Justice Ministry for requiring presiding judges to report on cases in which the state was an adverse party, saying this jeopardized the “appearance of impartiality”, given that the ministry has the power to bring disciplinary action against judges.
Lastly, the way in which the criminal investigation had been brought and conducted was found to be “manifestly abusive.” There had been no legal obligations requiring Kinský to present all evidence in a civil case; therefore, the investigation to that end lacked any legal ground and instead merely aimed at enabling the state to anticipate Kinský‘s legal arguments. The court underlined that any attempt to criminalize the exercise of a litigant’s rights, especially if the adverse party is the state, “ran counter to the right to a fair trial.”
In light of the above, the Czech domestic proceedings as a whole were found to be in violation of article 6 (1) of the European Convention on Human Rights, which guarantees fair trial rights. The decision is not final. The Czech government has three months to request the referral of the case to the Grand Chamber.
The case demonstrates the critical importance the court continues to attach to the impartiality of domestic judicial systems. Hence the “right decision” can only be based on the lawful functioning of the judiciary and not, even to the smallest extent, on value judgments of the executive. The latter constitutes such a threat to judicial independence that it taints the legal proceedings as a whole. Знакомства
INTERNET SERVICE COMPETITION:ANNA-MARIA KOVACS
Congressional Testimony July 14, 1999 00-00-0000 Written statement of Anna-Maria Kovacs First Vice President Janney Montgomery Scott Thank you for giving me the opportunity to appear before you today to discuss in the broadband Internet-access market. My name is Anna-Maria Kovacs and I am the telecommunications and broadband services analyst for Janney Montgomery Scott, a brokerage and investment banking firm. My job is to make judgments about the strategies, business plans and financials of firms within the telecommunications and cable industries and to gauge their chances for success in the face of their competitors` strategies and plans, so that I can help our investors pick stocks within this industry. site isp speed test
One of my observations is that the Telecommunications Act is on the verge of bearing the kind of fruit that was hoped for when the Act passed. Meaningful competition in various segments of the telecommunications market has finally emerged, and where it existed before the Act it is taking increasingly strong hold.
Facilities-based competition against the incumbent telcos is becoming a reality in the consumer as well as business markets. Competition in the business markets was real even before the Act passed. Cable-telephony has been deployed in large enough volume to assure us that competition in residential markets is becoming real, as well. While mass deployment may take a couple of years and another generation of technology, there can be no doubt that it is coming. Video competition has become a reality, with satellite- based services providing real competition to cable. Competition for high- speed Internet access is becoming a reality as well. Cable modems are proliferating and telcos have begun to deploy DSL, with both technologies able to run data at speeds 20 or more times those we have been accustomed to. In the backbone, long-haul segment, several new competitors are creating networks each of which provide more potential capacity than the total current traffic requires. Wireless is beginning to replace wireline.
The major players in each of these segments are trying to play in all segments, as they prepare for a world in which they expect a large part of the market to require bundled services. Thus, they are moving from their traditional areas of strength into new areas, concerned that they will not be able to defend their original position unless they are equally competitive in the other segments. Cable companies have upgraded their video capabilities and moved into data carriage and have begun to move into voice carriage because they see threats to their traditional markets from satellite- based video and need the new sources of growth that Internet access and telephony provide them. Telcos have accelerated their deployment of DSL in response to the threat posed by cable modems, which could decimate the telcos` second-line growth unless the telcos can offer a product that offers competitive speed. The long-distance carriers have moved both into Internet-based value- added services and into local markets, AT&T most notably with its enormous investments in the cable industry. In each case, the presence of a real, facilities- based competitor has spurred the incumbent to move more rapidly to provide new technologies, products and services.
That is an important lesson, in my view, to keep in mind as we look at the Internet access market and concern ourselves with ways to insure that the Internet continues to flourish and that there is unimpeded access to it by both consumers and content providers.
Today, there are two primary ways to access the Internet. The vast majority of users do so over the telcos` networks. Some do so at high speed, most often off corporate networks. Millions of consumers do so at relatively low speed, generally at or below 56 kilobits, though as many as 100, 000 consumers may be gaining high- speed access via DSL. The telco network these customers use provides point-to-point connections to any of thousands of ISPs, who in turn provide access to a plethora of websites that hold the actual content the customers want to reach. Slightly under a million consumers reach the Internet over cable networks, at speeds that may reach a megabit or more. They generally have direct access to one Internet Service Provider, Home or Road Runner, through whom they may reach other ISPs and the content of the Web. From the consumer`s standpoint, today`s choices can be roughly described as low-speed and the ISP of my choice on my telco or high-speed and a single ISP on my cable, for a more or less comparable total price of about $40 for the connection and ISP. Speed vs. ISP of my choice.
That clear-cut choice, however, is blurring. It is becoming possible in more and more locations to get high-speed on the telco via DSL, and Home has made it possible to access other ISPs through it, albeit at an extra charge. In other words, there are real technologies deployed in the field that make it realistic to expect that within a year or two, most consumers will be able to get high-speed access to the Internet via at least two media, cable and telco-DSL. The ability of cable to offer high-speed is spurring telcos` deployment of comparable speed even though it is not necessarily economic at this early stage in DSL`s learning curve. I believe that the deployment of DSL, in turn, will spur the cable industry to insure that it offers consumers a choice in content, content providers, and gateways that is comparable to what the telcos can offer. In other words, I believe that consumers, given a choice of two media which offer equally high speed at comparable prices will select the provider that gives them the content and ISP of their choice. The best guarantee that consumers will enjoy the benefits of broadband and the content of their choice, and that content providers will have access to all consumers, is to do everything possible to encourage both sides to deploy as vigorously as technology, human resources, and capital allow.
Both sides face some barriers on each of those fronts. DSL is a difficult technology to deploy. It is sensitive to distance from the central office as well as to the quality of the loop, and current versions of it are not compatible with the digital loop carrier that the best modernized telcos have deployed. All of these make it expensive to deploy and account for the slowness with which it has reached the field. Once it is deployed, however, it provides a secure, point-to-point connection whose speed is predictable and controllable. Some of these problems will disappear as new generations of DSL come to market over the next year or two, thus increasing the market that can be physically targeted and lowering the cost of deployment. A factor that will lower deployment cost for both DSL and cable-modems is the appearance of PCs that are DSL-and/or cable-ready. Those have begun to come to market and will help to further lower deployment cost and alleviate the human-resource problem the shortage of competent technicians who today have to go out and install either cable-modems or DSL directly into the PC. Thus, it is reasonable to foresee that at some point during 2000, DSL deployment will kick into high gear, which I would define as passing the million customer mark that cable-modems are already approaching. By that point, cable companies will have to face the fact that telcos can provide a product that is equally attractive in terms of speed and price to cable-modems. Consumers will no longer face the current choice of speed vs. my favorite ISP, but will be able to get both over DSL.
At that point the pressure will be on cable to open access to its network, a task that faces some real technology barriers. Cable networks are shared pipes. Because they are shared, it becomes difficult to control the actual speed any user will enjoy when multiple users are on-line. Home and Road Runner are able to some extent to control bandwidth allocation, to ensure that a few customers do not hog the entire pipe and exclude all others. There is today no network management system that can do that bandwidth- allocation job when many ISPs are providing service over the cable network directly to the end user during periods when the network is carrying a full load. It is likely that such an operating system could be developed for cable networks, but it is not here today. Hence, the cable industry`s insistence that other ISPs use Home or Road Runner as their gateway to the customer.
There are many who insist that the cable industry is motivated to limit or control access to its network not only by technical difficulties but by anti-competitive motives. The potential for that certainly exists given the vertical integration in this industry and the small number of horizontal players providing local access. It does not take much imagination to envision the potential for a player like AT&T that controls access to the majority of cable homes in the U.S. through its own properties or its affiliates, which is a part-owner of Home and will be of Road Runner, and which has a variety of content properties, finding ways to advantage its own content and sites on its own network. But it also does not take much knowledge of history to understand that in a competitive market that is likely to be a highly self- destructive strategy. Consumers who, at comparable prices and speeds, can get unlimited choice of content over the telcos vs. limited choice over their cable network are not likely to opt for the cable network. Beta vs. VHS and Apple vs. Microsoft both tell us that customers primarily care about content and applications and will flock to the vendor that gives them the best and widest selection of each. Thus, if AT&T were inclined to try to limit the number of ISPs and the content on its network, it would be punished severely by the market place, assuming there is another choice in that marketplace. Most Internet access would happen over the telcos` DSL pipes. Given the enormity of AT&T`s investment in cable systems and its inability to earn adequately over those systems without a hefty penetration of cable-modems and telephony, its stock would suffer severely if it maintained a closed-access strategy once DSL is readily available in the market- place.
The key, then, to ensuring that the cable industry, and especially AT&T which has invested so heavily in its cable networks, do not act in ways that anti-competitive against ISPs and content providers is to ensure that it has a real competitor at the network level. That is, the key is to ensure that DSL can be deployed as efficiently, economically, and rapidly as possible. That will put pressure on the cable industry to open its network. Ultimately that means creating new cable-network operating systems that allow network capacity control to be distributed among multiple ISPs. In the short run, it may mean reaching agreements with ISPs that enable them to look to the consumer like the primary ISP even when Home is actually providing the network control Regulators can also have some impact on the speed of deployment on each side. On the DSL side, rules that are likely to discourage deployment by the telcos themselves include the requirement that telcos to have separate data subsidiaries, that they provide competitors with a portion of the spectrum on the line on an unbundled basis, that they provide collocation for DSLAMs in already-crowded field-vaults. Each of these makes it operations more difficult and expensive for the telco. On the other hand, each of these facilitates deployment by Data LECs who ride on the telco`s network. If the primary need is to encourage as much DSL deployment as possible to put pressure on cable operators to open their networks, then the key question in considering such regulations has to be whether more DSL will be deployed by the telcos themselves, if they are left free of regulation, or by the DLECs, if they are helped by such regulations. website isp speed test
Similarly, regulators can have some impact on cable deployment. It is unlikely that cable will refuse to upgrade its networks in the face of regulation. AT&T, in particular, has already spent so much on buying TCI and will spend so much more on MediaOne, that it has no choice but to upgrade its networks to make as much money as it can on Internet access and telephony. However, regulations that do not take into account actual technological realities could slow deployment. Forcing kluged solutions to allow multiple ISPs direct access to customers before an effective operating system is ready would be one such possibility, because it could increase expense and might degrade service and therefore the marketability of cable Internet access.
How Wall Street allocates capital within this industry, or more simply how stock prices will move, will depend on the development of these various technologies, on the strategies chosen by the various players, and on regulation as well. To focus most specifically on the latter with some examples, minimizing regulations on the telcos is likely to help their stocks, but is likely to hurt the Covads and other Data LECs who provide DSL over the telco networks. Immediate open-access rules are likely to help the stocks of ISPs other than Home, and to hurt Home`s as well as to some extent cable stocks. That means that regulators need to be very clear on what their over-riding goals are, and to balance short-term vs. long-term goals. Is it more important to pit telcos vs. cable to ensure that each side is as aggressive as possible right now or is it more important to promote the health of the Data LECs? Is it critical to ensure open-access on cable today via regulations that might impose extra expenses on cable companies and will probably damage the financial health of Home, or is it possible to wait and see whether DSL-based competition takes care of the problem? How regulators answer these questions will help determine which companies and industry segments receive support from investors.
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