To: MikeM54321 who wrote (7282 ) 6/11/2000 1:30:00 PM From: lml Respond to of 12823
Hi Mike: Can't spend too much time here, so I'll be brief (yeah, right), & I apologize for other subsequent posts that may have address the same issues that I have addressed.Why is there hell to pay when AT&T wants to do an exclusive with Excite@Home with their cable pipes, YET no complaints when a mobile broadband wireless SP does an exclusive with an ISP or no complaints when a fixed broadband wireless SP does an exclusive with an ISP? transmission- Cable is a, "municipal franchise"...now that's something I didn't think about before. Thanks. But what does that mean? Are you saying if your are a municipal franchise, then you can't do exclusive deals with ISPs. But if you fall under FCC regulations you can? How is this fair? Why wouldn't the FCC be just as concerned about...oh I see what you are saying. You are saying it's not a matter of fairness. It's just the way that it is. And it's going to take a supreme court ruling to decide if, in fact, a local municipal franchise(in Oregon) can over ride the ubiquitous FCC. Cable service is subject to a non-exclusive franchise license granted by the local franchising authority, be it a municipal or county legislative body. Hence, the heightened visibility & "point of access" to influence policy regarding multiple issues. Though wireless franchises require local approvals for infrastructure improvements & ROW easements, in contrast, the point of access is not focused at the local level, but more appropriately at the FCC level. I say appropriately, because, IMHO, the Portland ruling is wrong. As I see it, it is clear that the Federal gov't has legislated in this area (cable) and that efforts by the Multnomah Franchising Authority (the franchising authority in the Portland case) to impose their own policy as a condition transfer of control of the TCI franchise to AT&T places an undue burden upon interstate commerce, which is violative of the Commerce Clause found in Article I of the US Constitution. But, this is JMO -- & every lawyer has an opinion (you know that). I think if the local municipality were to impose local policies upon local wireless franchises via their local approval process for ROWs the FCC (& the courts) would come down much harder & swifter on the local governing bodies than what we have seen on the cable landscape. Under the Cable Act (which I admit I am not that familiar with) the Federal gov't has expressly granted certain rights to the local franchising authorities (ie local leased access for community based programming), & thereby the policy issues regarding cable are a bit more murky, as we have seen. BTW, the 9th Cir., which heard the Portland case in October, 1999, has yet to hand down its decision. Interesting, huh? Much has happened since that hearing. AOL has entered into an agreement to merger with TWX. T has expressed its intent to open up its pipes in the next year. Could the 9th Cir. waiting for issue to become moot - resolve itself so there is no longer a controversy? I dunno, but the Court has taken an awful long time to issue its opinion on this matter. Mike, I think you touch upon a broader issue, one that we hear about re: the MSFT case, & that is about consumer choice. But really, at what "point of sale" is the choice made? With wireless, that choice is made when the consumer chooses his wireless provider. Right now, but not much longer, the consumer has little or no choice with respect to cable, & that's obviously changing. But, IMHO, it is that perceived lack of choice on the cable platform upon which the open access argument rests -- & IMHO, it is flawed. Gotta go.