While I haven't read any of the actual court papers filed by AT&T or the defendants, keep in mind that it was AT&T that brought this law suit against the Portland-Multnomah County regulators, apparently seeking a ruling that the regulators had no legal basis to require open access to TCI's cable network for other internet ISP's who might want to offer broadband access. AT&T reportedly argued their case on three counts: (1) that the open access requirement pre-empted federal cable statutes, (2) that it was a violation of interstate commerce, and (3) a violation of the First Amendment protection of free speech. As an aside, I get the first two arguments, but I can't see the third argument as having any relevance here.
The Portland regulators filed for summary judgement of AT&T's lawsuit. This is a standard first step by any defendant in a federal civil action if they decide there is a good chance of getting the case partially or completely thrown out ahead of time consuming and expensive discovery and trial. Summary judgement motions are decided by the judge on the basis of his/her interpretation of federal and state laws as they apply to the particular case in question. There is no consideration of the actual "facts" of the case, since ultimately the jury is the only trier of the facts. On a summary judgement motion, the only consideration is whether or not the plaintiff's arguments have any merit under the law. Judge Panner ruled that AT&T's claims were without any legal merit on all counts, granted summary judgment on all counts, and dismissed AT&T's case. The judge clearly decided that the Portland regulators were within their legal rights to require AT&T/TCI to allow open access to their cable network to other ISP's.
AT&T will now appeal to the US Ninth Circuit Court of Appeals. The Ninth Circuit is the largest in the nation, and has a total of 28 judges. Appeals are generally heard by a panel of 3 judges to expedite cases, with a 2/3 majority being needed for a decision either way. Occasionally, the 3 judge panel will recommend review by the full Circuit Court comprised of the Chief Judge and 10 others drawn at random from the other 27. The sole function of the Appeals Court is to decide if the Circuit Court judge was correct in interpreting the law as it applies to the case in question. The Circuit Court can uphold the District Court's ruling, or reverse the lower court's decision on one or more counts.
While reversals of course do happen, it's my view that this will be unlikely here because this seems to be a matter of interpretation of Portland's regulatory authority to impose conditions on cable franchisees. Moreover, Federal judges don't like to have their legal rulings reversed on appeal, so you can be sure that Judge Panner feels he's on firm ground in his decision in such an important case. It's also my view that the Ninth Circuit will move pretty quickly to decide this case given its potential nationwide ramifications.
If the Ninth Circuit upholds the present decision, then AT&T can appeal to the US Supreme Court. Again, the appeal would be only on the grounds that both the US District Court and the Ninth Circuit Appeals Court were wrong as a matter of law. I think that if the Ninth Circuit upholds the decision, AT&T won't have a prayer in the Supreme Court, even in getting their case heard.
As you can see, the bar is now raised pretty high for AT&T. Cases that have any legal merit are rarely tossed out in their entirety on a summary judgement motion, since plaintiffs invariably include every conceivable legal argument in their initial pleadings to preclude such an early dismissal.
Hope this provides some useful background to how this is likely to play out If anyone wants any further info on the machinations of the legal system, try these two links:
law.emory.edu
ce9.uscourts.gov
Next week should be an interesting trading week for AOL!
David T. |
