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Portland Weighs In On Open Access Debate

The great debate over open access to cable networks continues as all the players have let their opinions be known to the federal appeals court expected to rule on the issue next month.

In a reply brief filed earlier this week, the City of Portland and Multnomah County accused opponents of nondiscriminatory access to cable systems of attempting to engage the court in a policy debate over the merits of the open access.

The Portland brief emphatically stated that the city and county mandate for open access to the AT&T Corp. (T)-owned Tele-Communications Inc. (TCOMA) cable network is not a detailed regulatory scheme nor an attempt to regulate the Internet. The local legislators concluded that any such facility built by AT&T/TCI using public property, under a public franchise, must be available for use by competitors on a non-discriminatory basis.

The open access debated started when the City of Portland and Multnomah County voted to approve the cable franchise transfer from TCI to AT&T on Dec. 17, 1998, provided that AT&T grant nondiscriminatory access to their cable modem platform.

The county and city adopted the open access provision after conducting public hearings to provide all sides a full opportunity to participate.

Late in May, U.S. District Judge Owen Panner upheld the local government's order for AT&T to open up its broadband cable network to competitors in Portland, Ore., after the telecommunications giant had appealed the Portland decision.

The court rejected AT&T's argument that federal law prohibits city and county officials from forcing the company to open its cable network facilities to Internet Service Providers.

In handing down his decision, Judge Panner wrote, "The issue is whether the city [of Portland] and county [Multnomah] 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. I conclude that the open access requirement is within the authority of the city and county to protect competition."

Mark Rosenblum, AT&T vice president of law called the Portland decision inexplicable.

"The actions taken by officials of Portland and Multnomah County are beyond the legal authority municipalities have to review cable franchise transfers. Clearly we will continue to pursue our legal case."

Since the ruling was upheld by the Ninth Circuit Court of Appeals, Excite@Home (ATHM) has sided with AT&T and become a vocal opponent to the Portland decision.

In a statement released Thursday, Excite@Home executives said efforts by the City of Portland and Multnomah County to project their local jurisdictions into cyberspace will only serve to delay the development of the nation's broadband infrastructure.

Excite@Home contends that the Ninth Circuit Court must overturn its earlier decision or millions of Americans will be denied access to high-speed cable Internet services for many years to come.

Representatives of Portland and Multnomah County believe that ultimately the issue of open access to cable networks may be legislative matter.

The Federal Communcations Commission filed an amicus brief to the appellate court in August. Commission lawyers say the FCC is "the agency charged with implementing federal communications policy" and that it is "the only agency with jurisdiction over all the current providers of broadband technology."

The FCC brief noted that inconsistent regulation of different providers of broadband technology "could undermine the development of intermodal competition" between cable operators, wireline telephone companies, providers of wireless telecommunications services and satellite communications firms.

All the same, the only issue before the U.S. appeals court is whether federal law prohibits the city and county from imposing the open access requirement to preserve competition and protect consumers in Portland. On that issue, representatives of Portland and Multnomah County believe the district court ruling should be reaffirmed.

The city and country believe that AT&T's description of cable regulation is fundamentally wrong and that local franchising authority does not derive from federal law; it predates it. In short, local authority over cable is broad and Portland is free to act to protect local competition.

The appeals court is currently scheduled to release its decision early in October.