The other Internet vote

(Telephony) - Who elected these guys in Broward County?

No, I’m not talking about whichever candidate seems to be ahead in the more voting-impaired sectors of the Sunshine State. I’m talking about the selection of ISPs that will be available over cable networks when the battle for “open” or “forced” access—depending on whether you own a hybrid fiber/coax system or you don’t—finally resolves itself into something the courts and the customers can abide by.

It’s been brewing since September 1998, when Portland, Ore., decided to challenge AT&T’s right to take over the old TCI system in that town and use it to sell only its AT&T Excite@Home service. The fight spread from there to towns and counties scattered around the nation, and from there to local courts, where it has produced decidedly mixed results for independent ISPs.

One of those adverse decisions told the cable administrators of Broward County, Fla., that they had no constitutional right to compel cable operators there to add unaffiliated ISPs to their cable Internet lineup. “Compelled access like that ordered by the Broward County ordinance both penalizes expression and forces the cable operators to alter their content to conform to an agenda they do not set,” the district court judge’s ruling said.

AT&T’s cable network passes some 10,000 homes in Broward County. Given the brand power of AT&T and the marketing drive to get its broadband subscriber numbers up to 1.1 million by the end of this year—they’ve already broken the tape on 1 million—that doesn’t bode well for those of the nation’s 7000 ISPs that do business in the Broward market.

All that the ISPs that don’t own cable networks are looking for is a fair price for a ride on the network. Granted, it’s AT&T’s network—or AOL Time Warner’s, if that merger comes to pass, or Comcast’s, Cox’s or Charter’s. But those networks are the ticket of entry to the high-speed market, reaching more people right now than DSL service. And allowing the cable companies to lock out competing Internet services could spell certain doom for the third- and fourth-ranked provider in a market and could even put No. 2 in a tight growth squeeze.

Sure, both AT&T and Time Warner are currently conducting tests of multiple-access cable systems. AT&T is testing in Boulder, Colo., with a selection of regional and national ISPs, including Excite@Home, its own WorldNet service, EarthLink, RMI.Net and Juno Online. Time Warner is cranking up an open access test in Columbus, Ohio—so far using only its own services and those of AOL.

The company signed a deal with EarthLink two weeks ago, but the all-important financial terms have not been disclosed. And references to exclusivity deals seems to suggest that EarthLink will get preferential treatment over other ISPs: great for EarthLink, not so good for anyone further down the food chain than the nation’s second-largest paid dial-up provider.

On the upside, all the foofaraw has caught the ear of Washington regulators, who are now considering whether cable operators in general—and AOL Time Warner in specific—should be compelled to carry unaffiliated ISPs. Fro the sake of diversity, they should—and not just a polite selection of the big national competitors but a range of regionals and local providers, too. These guys have spent just as much effort and proportionately as much capital building their businesses; they have a right not to be excluded from the ballot, in Broward and elsewhere.

Brian Quinton is Editor-in-Chief of Upstart. Give Brian a piece of your mind at brian_quinton@intertec.com.