A federal judge in Richmond, Va. this week struck down a Henrico County law
that would have forced AT&T Corp. to
share its cable lines with rival Internet service providers.
In a decision released Wednesday, Judge Richard Williams of the U.S.
District Court for Eastern Virginia ruled that the Henrico County Board of Supervisors
exceeded its authority under state and federal law when it adopted the
“Open Access” ordinance last December.
In its filing, AT&T identified four separate provisions of
federal law which prohibit local authorities from imposing regulations.
Judge Williams agreed with the telecom industry leader on each point of law.
AT&T was encouraged by the decision and contends that the ruling evens the
score in a national battle over last-mile cable broadband delivery access
in the U.S.
Jim McGann, AT&T spokesperson, said the company was very encouraged by
Virginia ruling because it is the same question posed in courts by local
authorities across the nation.
“This ruling is highly significant because the question posed was
essentially the same one raised by local authorities in Portland, Ore.
and Broward County, Fla.,” McGann said. “Coupled with the overwhelming
rejection of such intrusive regulation by other jurisdictions across the
country, this federal court decision signals that the proponents of forced
access have yet to develop a persuasive rationale for their issue.”
The only other federal district court in the country to rule on the merits
of this issue upheld a similar ordinance in Portland, Oregon. That case is
now on appeal before the Ninth Circuit United Stated Court of Appeals in
San Francisco. A decision is overdue and expected at any time.
In March, the United States District Court for Southern Florida turned
aside cable industry preemption challenges to a similar Broward County
ordinance, finding that the cable companies lacked standing. That case is
still before the district court.
Christopher Wolf, President of the Hands Off the Internet Coalition and
Internet law expert, said the open access argument needs life support to
sustain its original momentum.
“It’s hard to see how this decision could have turned out any better,” Wolf
said. “From both legal and common sense perspectives, the notion that
Internet access could be regulated at the state or local levels makes no
sense. The
Internet is too vast to be tied down by a patchwork quilt of local
regulations.”
But AT&T’s opponents have mounted a robust national crusade to force cable
companies to share their systems with rival Internet service providers.
Rich Bond, openNET
Coalition co-founder expressed disappointment with the decision, but
said the group was optimistic about Henrico County’s decision to repeal the
court’s action and uphold the local mandate.
“The decision is a temporary defeat for consumers in Virginia,” Bond said.
“By overturning the local government’s decision, the Court has taken the
right to choose their own ISP out of the hands of consumers and placed it
back in the hands of the cable companies.”
“The decision is only a short-term defeat,” Bond added, “as it now places
the case squarely in the hands of the federal appellate court which we
expect to swiftly uphold the county’s open access requirement.”
Henrico County passed the ordinance requiring that local cable franchises
owned by AT&T and MediaOne
Group subsidiary MediaOne allow consumers to select the
ISP of their choice without being obligated to pay for a cable-affiliated ISP.
The openNET Coalition’s Bond added that he fully expects the Richmond
decision to be
overthrown in appellate court.
“Not only is this fight far from over, but we are delighted to have the
case fast-tracked to the Court of Appeals in Richmond,” Bond said.
“Judge Williams recognized from the bench that he has been overturned
before by the appellate court for finding that local community requirements
were preempted by federal law,” Bond added. “We fully expect that he will
be reversed again and that the county and, more importantly, consumers will
be vindicated.”
