Oregon ruling may fuel open access fight
By Corey Grice
Staff Writer, CNET News.com
June 4, 1999, 12:00 p.m. PT
In a decision that may give new life to the fight for open access, a federal judge today ruled in favor of Oregon officials who want AT&T to open its high-speed cable networks to competing Internet access providers.
U.S. District Court Judge Owen Panner granted the motion for summary judgment sought by city and county officials in Portland and surrounding Multnomah County, effectively putting an end to the court case.
The lawsuit was brought by AT&T and the former TCI in January after Portland officials required the firms to allow competitors to use their cable networks to offer Internet service. AT&T argued that city officials did not have the authority to force such a provision, following the firms' multibillion-dollar merger that transferred TCI's cable franchise to AT&T.
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the nation's largest long distance company and soon to be the biggest cable operator, should be forced to open its networks to ISP competitors to offer their own broadband services. Critics have said AT&T could effectively hold a monopoly on broadband Net access with its proprietary cable modem service Excite@Home.
Ma Bell has said that allowing competitors to use its cable networks removes the incentive to invest in costly upgrades required to offer high-speed Net access.
Although the case addressed whether the city had the authority to impose the open access requirements on AT&T, Panner also wrote in his decision that AT&T and the former TCI "have no contractual right under the franchise agreements to exclude competitors from the cable modem platform."
Panner did not specifically address the merits of open access as a policy, however.
"The issue is whether the city and county have the power to require access to the cable modem platform as a condition of approving AT&T's takeover of the cable franchises. To resolve the legal issue, I don't need to consider whether the open access requirement is good policy," he wrote. "I conclude that the open access requirement is within the authority of the city and county to protect competition."
AT&T representatives could not immediately be reached for comment.
"AT&T sued the people of Portland for requiring a level playing field. The judge's ruling sends the message that thousands of communities have that jurisdiction and that they can make their own decisions in favor of a competitive Internet future," said Sydney Rubin, a spokesman for the OpenNet Coalition. The coalition is an ISP lobbying group that includes America Online and MindSpring Enterprises, among others.
The decision is likely to spark a slew of open access requests from other cities and local jurisdictions across the country.
The city of Los Angeles is currently studying the issue, while San Francisco officials are seeking what they have called a "Portland clause" that would entitle ISPs in San Francisco to equal cable access if any other local municipality is granted open access.
A commission of the San Francisco County Board of Supervisors is weighing its options with regard to the AT&T-TCI merger and negotiations are ongoing between city officials and the companies, sources say.
Earlier this year the Federal Communications Commission declined to rule on the controversial issue, stating that its was premature to decide whether cable companies are exerting too much control over the high-speed Net access market.
But the issue has continued to gain steam in Washington. Two proposals are circulating in Congress that would give unaffiliated ISPs the right to access cable companies' infrastructure.
Earlier this week, the FCC's State and Local Government Advisory Committee, which represents state and municipal government interests, recommended that the commission reopen the cable access issue. Regulators aren't required to act on this recommendation, but it does add new weight to arguments from OpenNet and others.
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