Sunshine State Casts a Cloud Over Open Access

As if potentially determining the next President weren't enough, the Mickey-Mouse State also manages to obscure the vision of shared cable access in the US.

by Patricia Fusco
[November 13, 2000]

U.S. District Court Judge Donald Middlebrooks released his opinion on the Broward County, Florida cable access case late Friday.

Broward County adopted an open access ordinance on July 13, 1999. The order required that local cable providers, including Comcast Corp., allow rivals to share network connectivity.

Stormy day
Comcast executives didn't hesitate to fight the local order, filing a complaint against Broward County on July 20, 1999. A team of Comcast attorneys delivered a stern objurgation to local authorities, stating that the county had violated the Communications Act of 1934.

The cable company also purported that the order impaired its ability to do business, in violation of Comcast's First Amendment rights (to free speech). In addition, they noted that only the federal government, not the states, can regulate interstate commerce (according to the commerce clause of the US Constitution). Additionally, Comcast attorneys claimed that the open access order constituted an unlawful appropriation of its facilities in violation of due process rights.

Comcast was not the lone challenger to Broward County's open access ordinance. Advocate Communications, Inc., TCI TKR of South Florida, and MediaOne of Greater Florida all inveighed against the local order.

County reigns over conduit
Broward County lawyers argued that cable operators control a valuable conduit, which can be shared by rival firms because the system is separated by the content each company provides.

But the court disagreed. In his opinion, Judge Middlebrooks noted, "content and technology are intertwined in ways which make analytical separability difficult and perhaps unwise."

Legal lightning strike
Declaring Broward County's open access ordinance unconstitutional is a severe blow to unaffiliated Internet service providers' attempts to gain access to cable companies' high-speed lines. The issue of the ownership of connections to US residences will remain controversial for some time.

The District Court's opinion couldn't come at a better time for America Online and Time Warner, as the two firms continue their regulatory fight to become one copious company.

Judge Middlebrooks opined, "cable companies do not have a monopoly in the market for Internet access since most Americans still get to the Web via slower dial-up phone connections." The terminology Middlebrooks used makes it unlikely that the Federal Trade Commission will find a legal pathway toward requiring that Time Warner share its cable lines with competitors as a condition of completing its marriage to AOL.

Meanwhile, the Federal Communications Commission has "stopped the clock" on its review of the merger in deference to the FTC. The FCC is continuing its struggle to define the parameters of open access as part of its Notice of Intent issued Sept. 29.

Blue moon
Legal precedent that would make open access the law-of-the-land remains an illusive goal for independent ISPs who are struggling to compete with cable companies' high-speed services.

If the courts continue to follow current legal precent on the issue, refusing to overturn recent decisions, the idea of providing competing ISPs a level playing field with cable companies won't see the light of day anytime soon.

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Related articles:
	[Sept. 29, 2000]	FCC Investigates High-Speed Internet Service
	[July 8, 2000]	Monopoly or Access?