Waiting for Portland

Remember Portland? Both sides in the cable "open access" debate certainly do. And almost a year after AT&T appealed a district court's ruling to uphold a Portland, Ore., city ordinance opening the cable network, they are watching anxiously for a verdict from the 9th Court of Appeals in San Francisco - and contemplating the successes and failures of the open access movement during the past year.

One reason all eyes are on Portland is that several other localities have included "most-favored nation" clauses in their cable franchise transfers to let them revisit the access question. On May 16, the governing council for King County outside Seattle approved an ordinance that would require AT&T to open its network there if the federal courts or the FCC decides local governments have the authority to make such laws. The open access provision also would take effect when there are 35,000 broadband customers in the county and when Excite@Home - currently AT&T's exclusive cable ISP - captures two-thirds of them.

Some open access advocates treated the decision, which came after a year of study, as a win. "By adding these two triggers, the [King County] Council has sent a message that its citizens deserve a choice for accessing the Internet," said Greg Simon, co-director of the OpenNET Coalition.

But until those triggers get pulled or a favorable Portland decision occurs, King County high-speed users must pay twice to access an ISP over cable - $39.95 per month for Excite@Home, plus a monthly fee to the ISP of their choice. America Online objected to such a deal elsewhere in the nation.

Open access groups were handed a judicial defeat on the other side of the country when a U.S. district court judge in Henrico County, Va., ruled that the local cable agency does not have authority to require multiple systems operators (MSOs) to open their networks to unaffiliated ISPs. In a verbal decision, the judge said the 1996 Telecom Act did not permit an ordinance passed by the county council last December that required AT&T to unbundle access to the cable system it was acquiring from MediaOne.

"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.," said an AT&T spokesman. "Coupled with the overwhelming rejection of such intrusive regulation by other jurisdictions, this federal court decision signals that the proponents of forced access have yet to develop a persuasive rationale for their issue."

But Bell Atlantic and GTE plan to appeal that ruling and are hopeful of the outcome. "Henrico is, frankly, such a bad decision we welcome it," said John Raposa, associategeneral counsel for GTE. "The judge made the wrong call on every issue set before him." If the Henrico County decision is reversed, the issue could wind up before the Supreme Court.

The legislative record for open access has been less than stellar since the Portland appeal was filed, despite some early successes with local governments. In May, the Massachusetts Department of Telecommunications and Energy ruled that four towns exceeded their powers by trying to force the AT&T cable network to include local ISPs. Those ordinances were struck down.

Despite the dearth of substantive law on the books, open access groups are pleased with what the issue has achieved publicly.

GTE is negotiating with AT&T to flesh out the commitment AT&T has made to get other ISPs - starting with MindSpring - on its network by mid-2002, Raposa said. "To date, there has been absolutely no action on those commitments," he said. "[AT&T] are going at what could not even be considered a snail's pace.

"Raposa said he doesn't think AOL changed its tune on open access since announcing its merger plans with Time Warner. "AOL is now in a marriage - they're no longer going solo," he said. "Their view of the best way to achieve results is now subject to discussion with their partner. We don't find what AOL has done surprising in any regard."