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OpenNet Coalition Backs Portland

The openNET Coalition Tuesday filed an amicus brief with the Ninth Circuit Court of Appeals in support of local franchise authorities jurisdiction over cable licensing.

In May, a federal district court ruled that the city government of Portland, Ore., has the authority to force its cable TV company to open access to independent Internet services providers. AT&T-owned (T) Tele-Communications Inc., appealed the decision.

David Kendall, OpenNet legal representative, said the coalition's brief wants the Ninth Circuit Court to uphold the decision because judicial precedence sides with Portland.

"From the FCC's first action to regulate cable content in the 1970's, to the 1992 Cable TV Consumer Protection and Competition Act, federal legislation has made it clear that local franchise authorities may take action to protect consumers and promote competition," Kendall said. "Twenty years of judicial precedence is on the side of Portland."

Bruce Ennis, Jr. of the Oregon Internet Service Providers Association, said AT&T's opposition to the Portland decision on the grounds that the ruling impedes their first amendment rights is positively frivolous.

"The Portland ordinance does not restrict free speech, it enhances free speech with a multiplicity of Internet sources for Oregon," Ennis said.

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

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

The Federal Communcations Commission filed an amicus brief to the Ninth Circuit Court late in August. In the brief, FCC Chairman William E. Kennard said only the FCC has nationwide authority over broadband providers.

"Simply put, it's in the national interest to have a national broadband policy. That is why the FCC has filed a friend-of-the-court brief in a pending Ninth Circuit case arguing that only the commission has nationwide authority over broadband providers," Kennard wrote.

Kennard added the FCC's national broadband policy is to keep broadband regulation-free and let competitive forces develop the burgeoning high-speed marketplace.

"It is also why the FCC has decided not to intervene in this nascent broadband market." Kennard said. "We've decided to allow the cable companies to go ahead with their efforts to deploy broadband access without pre-emptive regulation, even as we closely monitor the marketplace for anti-competitive behavior."

Lloyd Cutler, U.S. WEST legal counsel, took part in preparing the openNet brief on behalf of the regional telecommunications company, GTE Internetworking and other regional ISPs. Cutler said local cable franchising authorities have the express power to promote competition in their jurisdiction.

"The FCC could have pre-empted the Portland decision, but it has not taken any such action," Cutler said. "Cable statues make very clear that local franchising authorities have the express power to protect competition and impose conditions on any transfer of control."

The largest U.S. home access cable provider, Excite@Home, (ATHM) followed the FCC statement with its friend-of-the-court brief urging the court to overturn the Portland decision.

Excite@Home's response to the openNET filing stated that the coalition offers no new arguments in favor of forced access to privately owned cable networks. The cable access company contends that burdening the cable industry with potential local regulations enacted by 30,000 jurisdictions would reduce competition, lessen consumer choice and increase prices.

AT&T remains the controlling shareholder in Excite@Home and the threat to slow cable network enhancements and deployment of two-way services loom on the broadband horizon as AT&T looks to complete its <"a href="http://www.mediaonegroup.com/"> MediaOne merger.

Regardless of political posturing, mandatory access to cable networks remains an illusive goal to most ISPs nationwide. One positive result of to the undecided cable access issue is that many companies have worked to rapidly deploy Digital Subscriber Line services as a high-speed alternative to cable connectivity. The FCC is quick to point out that accelerated nationwide DSL service deployment is the result of their "hands-off" broadband policy

However, DSL connectivity possesses limited reach into the broadband marketplace due to distance limitations, leaving cable services with a competitive edge on last-mile high-speed delivery systems. OpenNET is determined to bridge the broadband last-mile delivery gap and secure competing ISPs with open access to cable companies networks nationwide.

In related news, the openNET Coalition announced Tuesday that its membership is currently comprised of more than 700 Internet services providers nationwide.

Greg Simon, openNET Coalition co-director, said more Internet service providers continue to join the alliance in order to work for opening access to high-speed Internet cable services.

"The growth of our membership shows that the ISPs are committed to the concept of consumer choice in cable broadband Internet access," Simon said. "More and more ISPs and Internet companies are joining us in our effort to safeguard the open access policies that have helped to make the Internet what it is today."

In just the past month, the coalition has nearly doubled their fold having enlisted over 300 new members.

Rich Bond, openNET Coalition co-director, said consumer freedom to choose the method of Internet connectivity they prefer from a myriad of ISP services is essential to future growth of the online community.

"The Internet grew because individuals had the ability to choose among Internet Service Providers offering a wide range of price of price and performance options," Bond said. "Our new members will strengthen our ability to keep access open."



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