Frank:
As always, good, informative post. Notwithstanding the definition of what an ISP is appears a bit muddy, having evolved, mutated & transformed over recent years.
At issue here is what does "open access" really mean -- within a legal context that is, & how is an online service like AOL may be impacted by what Portland is attempting to achieve vs. how the impact upon a plain-vanilla ISP -- one that today provides nothing more than dial-up server, e-mail & maybe 1 MB of storage for a web page.
Obviously, the court's ruling on summary judgment does not address this question. I've just gone thru the decision -- thanks to Franz Ross's link the other day. And while I haven't digested it fully, I do have a few preliminary comments.
J. Panner's opinion fails to acknowledge that the advent of broadband access to the residential market (in Portland & Multnomah Co.) will not lead to extinction of narrow-band access & the ISPs who presently provide it. Not every narrow-band subscriber will upgrade to broadband. One reason is affordability; the other is desire or need for broadband access. Casual users, such as those who just use an ISP for e-mail communication, will not be the first to abandon their present ISP in favor of @Home's broadband service.
The court accepts the movants' definition of "essential facility" as the cable modem platform. But what really is at issue here is open access across all forms of broadband networks, not cable alone.
Can the District Court spell DSL? Or how about fixed wireless? Sure, these broadband alternatives may not be immediately available. But neither is cable. Jurisprudence must not be based upon a snapshot, but rather attempt to render equity based upon principles that stand the true test of time. I would say 2-4 years foresight is not much to ask the court.
Even assuming the cable modem platform to be an essential facility, T can put forth a legitimate business reason for excluding competitors at this time. The obvious is financial; the more latent is technical. Irrespective of arguments supporting the position of the City & County that T has no legitimate business reason for refusing to accommodate competing ISPs, material facts are in issue in the case & summary judgment should not have been rendered.
The underpinning of the Court's decision appears to rest upon language found in The Communications Act of 1934 - preserving competition. 47 USC § 553(d)(2). The court cites state interest "to preserve competition for cable services" & state power "to prohibit the acquisition of a cable system that may eliminate or reduce competition in the delivery of cable service."
All this in the name of police power -- in other words, health, safety & welfare. I guess competition on the local franchisee's cable modem platform that does not even exist is a legitimate state interest to invoke police power. Hmmm.
I think most will agree that the greater threat to the welfare of the people of Portland & Multnomah Co. stems not from the lack of competition on T's cable modem platform, but rather from the conduct of their own government representatives whose actions will likely deprive them of broadband access for the foreseeable future.
Using the court's definition of "essential facility" as the cable modem platform, then there is no competition today to preserve, & there is no competition to eliminate or reduce. If on the other hand the appropriate definition is expanded to include all modes of broadband access, then competition does exist today & will in the future notwithstanding exclusivity of AtHome service on T's cable modem platform.
In responding to T's Commerce Clause claim, the court concludes compelling open access in the Portland metropolitan area only will not place a disproportionate burden on interstate commerce that would be outweighed by the benefits of local competition. I find this conclusion difficult to accept not only on its merits, but more particularly at the summary judgment stage.
Are the ISP's whose interests are at issue here just local ISPs serving the Portland metropolitan area only. Or does the group also include other ISPs more visible on a national or interstate level? US West & GTE appear as intervenor-defendants in this action. And this decision won't have a material impact on interstate commerce?
Finally, in response to T's contract claim, notwithstanding specific language in the franchise agreement that the City & County may condition a transfer of control related to technical, legal, & financial qualifications (of the prospective transferee). . .," the court concludes that the mandatory access provision imposed by the City & County falls within T's legal qualifications. Talk about a stretch.
Anyway, Frank, where was I? |
