E. Davies:
Thanks for your efforts to expand upon the analogy or model to help explain to the lay-person the issues raised by open access. While I agree with the MSO is akin to owner of the store, I do not necessarily agree with the other analogies you make.
First, & correct me if I'm wrong, ATHM is not only providing "space" on the shelves on which to provide content, but is also establishing the platform upon which to stroll down the MSO's aisles. Maybe compare ATHM to the shopping cart, a propietary one that runs on a track -- so that no other shopping cart can move down the aisle other than the "ATHM shopping cart."
Second, the public does not "own" the underlying land. We are talking about assets that are owned by the franchised MSO. However, what is more important is the RIGHT of the MSO to use its installed assets to deliver access to a given subscriber market. So maybe think of the government not as landowner, but more appropriately as itself -- the local government & it role in granting the MSO it business license to operate "the store."
Now, getting back to the ATHM analogy, what I see being discussed is the difficulties in opening up the aisles to non-ATHM "shopping carts" whose "wheels" don't run on the "installed tracks" the MSO has permitted ATHM to install in its aisles?
Should the local government have the power to compel the store owner to provide for "umpteen" sets of tracks down his aisles so that the public has "open access -- regardless of the technical feasibility or cost?" Or is the real open access issue the ability of the public to shop across the street at the "DSL store" where the installed tracks are non-proprietary?
Most importantly is how much of the public's interest truly served by opening up the cable "aisles" when the public truly does or will have a choice in the foreseeable future? Granted, exclusive access along the cable aisle is not the best the solution in the long run, but really how much will the public's interest truly be served by compelling open access at this point in development?
IMHO, this whole issue requires a balancing of interests & the interests of the public are not outweighed by the burdens that would be placed upon the MSOs who are now investing a significant amount of capital to deliver this access to their subscriber base. IMHO, this is how a court should view this matter.
As far as the Portland case, I think what also is at stake is the interests of the Federal Government & its interest in regulating interstate commerce free of the burdens imposed by state regulation.
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