Appears we have quite a good discussion going on here. I have yet to comment as I have not been able to read the judge's decision in its entirety. Nevertheless, I do have some comments.
The media, in its usually style, has over sensationalized the implications of this decision based upon on its face without the necessary thought & observance of surrounding circumstances. The media should stick to reporting the facts & not interpreting decisions of law. The latter obviously belongs within the purview of the legal community.
It's important to note that the decision that was rendered was a summary judgment (SJ), which means the judge found no issues of material fact in the evidence presented before him, & that the City of Portland & the County of Multnomah were entitled to a favorable outcome on their motion for SJ as a matter of law.
In layman's terms, the judge's decision was not based upon the merits of the case, but rather his interpretation of the law -- that local subdivisions of a state (in this case Oregon) do have the authority to compel open access on cable Internet systems. IMHO, the judge rendered the decision that he did in order to send a message to Congress, particularly the FCC, "if you're unwilling to regulate in this area, I will."
The judge's ruling has obvious Constitutional implications under the Commerce Clause as well as the Contracts Clause. I include the Contracts Clause since but for the TCI merger into T exclusive @Home Internet access would have cont'd. I cannot comment further on this issue since I am not knowledgeable of the details of the franchise agreements in existence at the time Portland & Multnomah imposed their open access condition.
More far reaching are implications under the Commerce Clause as my fellow barrister has pointed out. The Constitution expressly grants Congress the authority to regulate commerce among the States. Frank raises a typical threshold question whether interstate commerce at issue. The answer is obviously yes.
While Portland & Multnomah Co. may have the facial authority to regulate cable Internet access within their jurisdictions, such reasoning would lead to utter confusion not only in Oregon, but across Internet networks throughout the states. Other jurisdictions would have not only the right to compel open access, but also the right to maintain the exclusive access that now exists. Interstate commerce would undoubtedly be impacted -- & in a negative way.
The framers of the Constitution were well aware of the negative impacts upon interstate commerce by state regulation in this area. Therefore, it is law that the states may regulate so long as they do not place an undue burden on interstate commerce. Here, IMHO, I think the judge's decision has broad implications on interstate commerce. It is obvious to me that the FCC can not let the judge's decision stand, & must now initiate some form affirmative policy in this area.
As for whether T will appeal or dispose of its assets within the movants' jurisdiction, I cannot believe that T & its legal team would take the risk of letting this decision stand & wait for FCC action that would not necessarily to be beneficial to its present interests. At issue in this case is the ability of the state to regulate in an area that the Constitution has delegated to the Federal Govt. The judge's decision will & should be appealed on this issue alone -- & the judge will the one least surprised.
If anyone can get their cyber-hands on the decision (via WestLaw or Nexis), please post. Its amazing that these online legal databases hold a virtually monopoly on the distribution of these decisions that are truly in the public domain.
Gotta go, gentlemen. Enjoy the rest of the weekend. |
