Consumer and Internet advocacy groups quickly lined-up to take a stand on
the 9th Circuit Court decision handed down late Thursday.
Despite losing the fight to regulate AT&T
Corp.’s cable network in Portland, Ore., city officials say their battle to
open up competition among Internet service providers would persevere in the
long run.
The 9th U.S. Circuit Court of Appeals in San Francisco ruled that the @Home cable Internet service offered by
AT&T is in essence a telecommunication service.
Open access proponents contend that the ruling means high-speed cable
services are subject to Federal
Communications Commission control, if regulations mandating forced
access can not be established by municipalities that license local cable
franchises.
Kerman Maddox, Open Access
Alliance executive director, said AT&T and other cable companies should
not be allowed to keep their monopoly over the high-speed cable lines and
close out independent ISPs.
“The Court has said Internet access over cable should be treated like any
other telecommunications service, subject to regulation by the FCC,” Maddox
said.
Mark Cooper, Consumer Federation of
America director of research, said the court decision is a win for
independent ISPs and all advocates of open access.
“Open access is the law of the land,” Cooper said. “That is what we told
the FCC almost two years ago and that is what the court found.”
While AT&T is celebrating its court ordered ability to determine its cable
access destiny in Portland, the openNET Coalition said the
decision makes the open access movement a whole new ballgame.
Greg Simon, openNET Coalition co-director, said the Court has cast the open
access debate in an entirely new light.
“The ruling clarifies that cable Internet services are subject to the same
requirements as telephone companies,” Simon said. “It will open the door
for other Internet service providers to gain access to upgraded cable systems.”
In early written arguments, lawyers for both AT&T and the City of Portland
stipulated that Internet access over cable lines was strictly a cable
service. However, in oral arguments before the court, several judges
questioned why these services were not treated like telecom services,
specifically digital subscriber line access.
With the 9th Circuit Court’s ruling in place, openNET contends that the
court has redefined how regulators and legislators should treat cable
broadband Internet services.
Rich Bond, openNET Coalition co-director, said the court’s decision now
opens the door for the FCC to pen to a national open access policy.
“We believe that it is now time for policy makers to implement a policy
that guarantees all Americans who want to use their cable company for
high-speed Internet service have a choice of Internet service providers,”
Bond said. “The same rules by which local telephone companies provide
high-speed Internet access to their customers will now apply to cable.”
Jeffrey Chester, Center for Media
Education executive director, said the decision really puts the ball
back in the FCC’s court.
“For two years now, FCC Chairman Kennard has been touting his go-slow,
hands-off policy, assuming that the marketplace would solve the open-access
puzzle,” Chester said. “Instead, we’ve been treated to needless
uncertainty, costly lawsuits, and the specter of closed cable systems that
effectively wall off portions of the Internet for purely private exploitation.”
“Now is the time for the FCC to take a strong strand in this matter,”
Chester added “It must preserve the
diversity and democracy that have long
been the hallmarks of the narrowband Internet by keeping the broadband
lines open and competitive.”
FCC Chairman William Kennard said Congress ultimately determines the
competitive nature of the broadband arena.
“The court decision recognizes that Congress established a national
framework to govern high-speed Internet access,” Kennard said. “We share
the goal of municipalities that consumers should be able to point, click
and choose their Internet service provider.”
Kennard added that the FCC’s policies would continue to promote choice
among providers for content and conduit, while fostering an environment of
investment and innovation.
Not all organizations concurred with open access advocates take on the
court ruling. Christopher Wolf, Hands Off The Internet president
participated in the case’s oral arguments held in November.
Wolf said in the court of public opinion, there is now a clear consensus
that, regardless of the legalities, the Internet is far too complex and
fast-paced for government to dictate access regulations and pricing levels.
“The court hit the nail on the head,” Wolf said. “While the phrase ‘open
access’ may sound nice, in reality it’s nothing but a terrible way for
regulators to tie down Internet access in a confusing patchwork of
regulations.”
Portland City Commission Erik Sten said the municipality would carefully
review the ruling before it would file for an appeal the court’s decision.
“We may have lost the battle but, may have won the war,” Sten said. “The
City must fully consider the implications of the court’s ruling before we
appeal the decision.”
