There is ADSL, dial up, wireless, and other high-speed choices. In my opinion a monopoly means that you do not have any alternatives.
Yes, Steve, you are correct. This is where the Portland ruling misses the mark. The court first defines the cable modem platform to be an "essential facility," then relies upon this misplaced definition to legitimize the franchising authority's interest in protecting competition.
First, the cable modem platform is not an essential facility when "open access" is expanded to include other forms of broadband available today, though on a limited basis, namely DSL & fixed wireless.
Second, assuming the cable modem platform to be an "essential facility," how can the franchising authority claim it acting in the interests of "preserving competition" when in-fact no competition presently exists, not because of monopolistic enterprise, but rather the market has yet to develop to a point where competition should be a concern.
Obviously, there is overriding, superceding Federal policy to encourage development of broadband access over cable without unnecessarily hindering the incentive of the cable companies to make huge investments in this area. This is where the public interests lies -- not in competition, not just yet.
What we're seeing in Portland (& in Washington a la AOL) is the concern by non-cable providers of the lack of regulation to compel the cable companies to open up their pipes. This is political action. Steve Case has resorted to Congress -- the legislative branch. The local franchising authority in Portland has resorted to the courts.
What's the judge to do? Decide the case on the merits? No, not on this issue that is clearly a matter of national policy & within the purview of the FCC. Note the judge's comment on his limited role not to second-guess the decision of the franchising authority to impose the open access condition. He clearly doubts the wisdom of the authority to impose the open access condition at this time, but does not doubt its authority to do so.
Whether the franchising authority has the authority to impose open access at this time is a matter of law, which must be interpreted within the context of present FCC policy. What better way to quickly bring this local issue to the national forefront but to render summary judgment declaring local authority to regulate access over cable irrespective of overriding Federal policy. As I stated earlier, the intent of the ruling is to solicit an affirmative response from the FCC.
JMO. |
