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 [email protected] (ATHM)
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 &
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
“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
to act so quickly to approve the
transfers, it will now have the chance to decide what it is more important,
creating good public policy or rubber stamping the business plans of the
cable monopolies,” Simon said.
Rich Bond, openNET co-director, said the four Massachusetts communities
should be commended for their willingness to stand up to the threats and
bullying tactics of AT&T and MediaOne.
“If their request is granted by DTE, and there is no go reason why it
should not be, they will force AT&T and MediaOne to defend its
long-standing position that consumer choice is not the public interest,”
Neither AT&T nor MediaOne have commented on the filing with the DTE to date.