SCN: 9th Circuit open access decision in Portland case

[Joel Ware IV]

See below: (from WAISP - WA Assoc of ISPs)

The 9th Circuit Court has ruled that cable modem service is a
telecommunications service.  It therefore can be expected to be 
subject to "open access" provisions.  Unfortunately, they also ruled
that local governments do not have the power to mandate open access -- so
we have to look to the Federal government, specifically the FCC, for help.

Regards,
    -Joel.


Joel Ware, IV           jw4 at scn.org
Volunteer Coordinator, Member of Governance, HR, Ops, Board, ExComm

---------- Forwarded message ----------
Date: Fri, 23 Jun 2000 13:38:25 -0700
Subject: URGENT -- Open Access Decision

Open Access -- A Win in Portland

By now you may have heard that the 9th Circuit Court ruled, in a Portland,
Oregon case that while local governments don't have authority to require
cable operators to provide open access, it did rule that Internet service
is a "telecommunications" and not a "cable" service.  Open access has been
a hallmark of industries regulated under telecommunications law.

In their decision, the Ninth Circuit ruled that cable modem service falls
under the legal classification of a telecommunications service.  As such,
the court overturned the lower court ruling.  However, by finding that
high-speed access to the Internet via a cable system (cable modem service)
is a telecommunications service, the court has subjected the cable industry
to the same open access requirements applicable to telephone
company-provided broadband (DSL) Internet service.

What that means is that open access is inevitable now as it is the rule of
the road in the broader world of telecommunications, and the cable
industry's attempt to create a monopoly will not stand.  We have a lost a
battle today and won the war.  WAISP and our Open Access Coalition partners
will now be demanding that  the Federal Communications Commission to stop
protecting cable industry and do its job - stand up for consumers and open
access.

In Congress today, Rep. Edward J. Markey (D-MA), Ranking Democrat on the
House Telecommunications, Trade, and Consumer Protection Subcommittee, said:

	"The decision today in the Portland case confirms what many of us
who worked on the Telecommunications Act have known all along - that
broadband access to the Internet over cable systems is a
'telecommunications service' and therefore must be treated with the same
openness and access that consumers and Internet providers enjoy today over
the phone lines. I had introduced a Congressional Resolution (H.Con.Res.
173) earlier in this session of Congress calling upon the FCC to implement
the market opening provisions of the Telecommunications Act on this point.
With this decision it is my hope that the FCC will take greater steps to
make open access a reality for consumers across the country."

We are still discussing how best to work with the King County Council and
other local jurisdictions on the impact of the decision, and our next step.
We will be asking both the King County Council and City of Seattle to file
with the FCC a demand to require ATT to provide immediate open access.  In
the mean time though we have to (unfortunately) sit and wait.

I did want to again thank all of our WAISP members who have been suportive
of our efforts before local jurisdictions.  Your efforts were not in vain
at all, as without the heated discussions and pushing the issue to the
front we wouldn't even have the Portland decision affirming that it is a
telecommunications service.

Gary Gardner
Executive Director, WAISP





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