Federal Court Affirms Open Cable Access

Upholds Portland, Ore. condition on approving AT&T-TCI merger.

by Patricia Fusco ISP-Planet Managing Editor [June 7, 1999]

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.

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