4th CIRCUIT RULING SIGNALS END OF LOCAL OPEN ACCESS MOVES
Decision by 4th U.S. Appeals Court, Richmond, Va., that federal law bans localities from imposing open access mandates on cable operators is likely to halt efforts by cities and counties to enact such requirements, according to both open access proponents and opponents. With its unanimous ruling late Wed. that cable modem lines were “telecommunications facilities” that couldn’t be regulated locally, 4th Circuit panel joined 9th U.S. Appeals Court, San Francisco, and U.S. Dist. Court, Miami, in striking down local open access ordinances as violations of either Constitution or federal law. Although 3 courts differed on grounds for rejection and on regulatory classification of Internet access over cable lines, they all agreed that cities and counties couldn’t impose restrictions on cable modem service. “The local authorities are becoming preempted out of this,” said Andrew McBride, partner at Wiley, Rein & Fielding, who represented Verizon in joint case with Henrico County against AT&T and MediaOne. “They [the courts] keep reaffirming the federal authority over this.”
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Henrico County Attorney Joseph Rapisarda seemed resigned to that fate Thurs., telling us that county was leaning against appeal. He said voluntary commitments by AT&T and other major MSOs to open their broadband lines to ISPs and fact that FCC was examining issue were reasons “we may not go forward.” However, he said, county Board of Supervisors will decide what to do at meeting July 24. McBride said he didn’t know whether Verizon would appeal decision to full 4th Circuit or to U.S. Supreme Court.
David Gershwin, aide to L.A. City Council Pres. Alex Padilla who sponsored open access legislation last year, seemed resigned as well. Gershwin blamed FCC inaction for 2 years that left “local municipalities no option but to seek open access provisions on behalf of consumers.” “This crazy, disjointed, patchwork of court decisions and appeals does not take into account the needs of individual consumers,” he said. He urged FCC to “step up to the plate” and provide “much-needed guidelines for this rapidly growing segment of the cable industry.”
While expressing disappointment at ruling, National Assn. of Telecom Officers & Advisers (NATOA) said most cable operators had acknowledged that providing access to multiple ISPs made good business sense and was technically feasible. NATOA Exec. Dir. Libby Beatty expressed confidence that market would continue to exert pressure on cable operators to provide consumers with variety of choices. “The bottom line for us is that the consumer gets what he wants and needs without corporations’ dictating what they need,” she said.
Like Beatty, Rapisarda tried to put positive spin on ruling, arguing that impact of court decision was not as bad as it would have been year ago. Several things had occurred after county had passed ordinance, he said, including commitment by AT&T to provide multiple ISP access after expiration of its exclusive contract with Road Runner. Court had made note of that commitment in its judgment, he said: “We may be on course on open access.” Although county ordinance has been overturned, market and federal govt. have been “prompted to go down the open access path,” he said. “It’s not all that bad.”
Cable officials were pleased they had won another legal battle against open access advocates. “The Fourth Circuit’s decision in the Henrico case offers the strongest judicial affirmation yet that public policy decisions regarding cable modem services are not within the jurisdiction of local governments,” NCTA Pres. Robert Sachs said in brief statement. “Today’s court decision will further encourage the rapid deployment of high-speed cable Internet services to consumers.”
Similarly, AT&T Vp-Law Mark Rosenblum said ruling “affirms what we've argued since the ‘forced cable access’ debate emerged 3 years ago in Portland, Oregon: Federal law very clearly prohibits municipalities from requiring cable companies to provide telecom services or telecom facilities as a condition of obtaining a license to operate.” Saying AT&T officials “obviously [were] pleased” with decision, Rosenblum said company has “now succeeded in our challenges against every municipality that has imposed these forced access conditions. We hope this puts an end to the argument that municipalities should mandate forced access for cable companies.”
Both sides agreed that 3 court rulings, in spite of their differences on regulatory treatment of cable modem service, heightened pressure on FCC to spell out national policy on open access. Commission opened broad inquiry on issue last fall and collected many comments but hasn’t made ruling yet. “I think either Congress or the Commission will have to act,” McBride said. “The court [4th Circuit] said it expected the Commission to act.”
Indeed, in its decision, 3-judge panel of 4th Circuit noted that FCC had begun proceeding on issue. “The FCC, in its amicus brief, has diplomatically reminded us that it has jurisdiction over all interstate communications services, including high-speed broadband services,” court said in opinion written by Judge Blaine Michael. “For the time being,” he wrote, “we are content to leave these issues to the expertise of the FCC.”
FCC Deputy Cable Bureau Chief William Johnson acknowledged that “the pressure’s on us to do something.” Speaking at Strategic Research Institute conference in Washington Thurs., Johnson said Commission staffers hoped to produce report on open access issue in fall. “It’s nice that the court treated the FCC deferentially,” he told us later. “We've got to get on with it.”
Cable attorneys and industry observers said new legal debate over open access may erupt at U.S. Supreme Court as part of its consideration of pole attachment regulations in fall. Although pole attachment case doesn’t directly concern open access, it “raises the issue of the regulatory classification of cable modem service in the context” of Telecom Act’s pole attachment provisions, said attorney Frank Lloyd. In that case, Supreme Court will tackle 2 lower court rulings that FCC doesn’t have authority to regulate pole attachment rates for cable-delivered and wireless Internet access.