U.S. District Judge Owen Panner has upheld a local government
order for AT&T Corp. to open up its
broadband cable network to competitors in Portland, Ore.
In a blow to the telecommunications giant, Judge Panner late Friday said cable regulators in Portland had the right to make open access a condition their approval of AT&T’s $55 billion purchase of cable-TV giant Tele-Communications Inc.
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 – law, said the Portland decision is
inexplicable.
“AT&T raised numerous substantial
challenges to these ordinances, going to the jurisdictions’ legal authority
to adopt these rules as well as the soundness of the rules themselves. The
most significant aspect of the decision is its failure to address any of
these challenges in a meaningful way.”
Rosenblum added 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.”
AT&T was quick to point out that the real losers are likely to be the
citizens of Portland and Multnomah County as the decision can only delay
deploying new services to the area.
Don Janke, president of Internet Ventures,
Inc. praised the ruling. His company has been battling TCI in several territories to get the cable operator to open its networks to competitors.
Janke said the decision “reaffirms the rights
of local governments to impose open access to protect competition for
broadband cable Internet services.”
“Leased access is stable and predictable and a means to
implement the judge’s decision in the most efficient manner to achieve
consumer choice.”
In January, IVI and affiliate Internet-On-Ramp filed for leased access
carriage in Spokane, Wash. IVI requested that leased access options be a part
of the city’s approval of the AT&T – TCI merger.
IVI insists that the Portland decision must carry over into other markets
where the ISP has petitioned the courts for leased access to cable
networks.
“Based on the judge’s decision, it is incumbent on the city
government of Spokane to reopen its consideration of Internet-On-Ramp’s
complaint against TCI of Washington for failure to grant leased access,
Janke said.
As outlined in Section 612 of the Communications Act of 1934, as amended,
leased access offers entities unaffiliated with the local cable operator
the opportunity to utilize channel space. Section 612 has been the
cornerstone of IVI’s argument to “promote competition in the delivery of
diverse sources of video programming and to assure that the widest possible
diversity of information sources are made available to the public.”
In a February, TCI indicated by letter that it “does not believe that it is
required to provide leased access carriage for an Internet access service”
and that the company was not willing to do so. TCI indicated that the
company did not believe providing for leased access to its network was a
valid interpretation of neither the letter nor the spirit of the law.
In a May, Spokane’s city manager refused to take action against TCI,
suggesting that a complaint by IOR against TCI could not be acted upon
until the FCC clarified the issues.
Janke has crusaded for leased access in Spokane, Wash. and other West Coast
markets. Last week he urged the Federal
Communications Commission to produce a declaratory ruling confirming
that ISPs have the right to achieve full carriage under leased access rules.
Internet Ventures has also applied for leased access in Stockton and Ventura, Calif., Durango, Colo. as well as in several communities in Oregon and southern Washington..
IVI has four active cable access installations with California cable
operators Avenue TV Cable in
Ventura, and Cox Communications in
Humboldt, iATI in Medford, Ore. and Davis Communications at Eastern
Washington University. The ISP provides PeRKInet cable modem service for about
17,000 subscribers.
IVI is targeting U.S. markets
with populations less than 500,000 and currently operates 14 ISPs in
California, Colorado, Idaho, Oregon and Washington.
