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Gang of Four Takes On AT&T-MediaOne in Massachusetts

Four Massachusetts communities Tuesday filed with the Commonwealth's Department of Telecommunications and Energy requesting a full hearing on whether open access to cable networks is in the public interest.

Earlier this year, Cambridge, North Andover, Quincy, and Somerville refused to allow the transfer of MediaOne Group's cable licenses AT&T Corp., unless the telecommunications company agreed to offer Internet providers non-discriminatory access to the broadband networks.

The communities utilized AT&T's (T) recent decision to share access with MindSpring Enterprises Inc. (MSPG) in 2002, when its exclusive contract with Excite@Home (ATHM) expires. p> The Massachusetts communities are being represented pro bono, by Professor Charles Nesson, Berkman Center for Internet and Society director, William F. Weld, Harvard University professor of law and Kevin Conway of Conway Crowley & Homer.

In their filing, the Massachusetts municipalities' legal team said that AT&T essentially conceded all barriers to open access in the Dec. 6 filing with the Federal Communications Commission.

"AT&T essentially concedes in a Dec. 6, 1999 filing with the FCC that open access is financially feasible, technically feasible, beneficial to consumers, pro-competitive and has no adverse effect on product innovation," the brief read.

"This is directly contrary to the position that AT&T takes in this proceeding and demonstrates that virtually every representation that AT&T and MediaOne (UMG) made to the Issuing Authorities at the public hearings at the core of this case was misleading and inaccurate."

The four communities filed their request with the DTE in response AT&T's demand that communities' actions be invalidated. Under Massachusetts's law, the DTE has the right to review the actions of a specific community on a cable franchise transfer and overturn a decision if the community acted unreasonably or arbitrarily.

The municipalities' legal representatives also cited AT&T's filing with Canadian Radio-Television and Telecommunications Commission, Canada's cable television authority. In that filing, AT&T strongly advocated an open access directive due to the anti-competitive impact of Canada's one-closed cable systems.

In their Canadian filing, AT&T purported that cable operators and local telephone companies have the ability to exercise significant market power through their control of the broadband bottleneck.

"The potential for anti-competitive behavior can manifest itself in a number of ways," the AT&T brief read. "One, pricing of broadband accessing services below cost in so markets so as to preclude services by other providers. Two, pricing services above costs in uncontested markets."

The openNET coalition represents more than 900 Internet service providers and other Internet-related companies nationwide. Greg Simon, opeNET co-director, said that by asking the DTE to hold full hearings on the subject of open access, the four communities are taking steps in preventing AT&T and MediaOne from forcing a quick regulatory ruling on open access.

"Since there is no reason why the DTEhas