Broward May Settle Access Case

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Although attorneys for Broward County, Fla., have appealed a judge's decision striking down an open-access ordinance, litigation over the issue may not continue.

Broward has yet to file briefs for its December challenge before the U.S. Court of Appeals for the 11th District. And a county attorney confirmed that regulators are trying to negotiate a settlement with local operators.

In 1999, Broward County commissioners joined other local regulators in passing an ordinance compelling its local operators to open their high-speed data platforms to competitors.

Affected MSOs-including Comcast Corp.; Advocate Communications, which does business in the region as Advanced Communications; and AT&T Broadband, then known as Tele-Communications Inc.-filed a challenge in July in federal court in Miami, Fla.

Initial rulings went against the industry.

U.S. District Court Judge Donald M. Middlebrooks eliminated several plaintiffs on the grounds that operators that had not launched cable-modem service, and therefore lacked standing. He also dismissed most of the seven counts.

But in November, the judge issued a 26-page opinion that sided with cable on First Amendment grounds. He wrote that regulators were required to show a "compelling reason" for limiting cable companies' First Amendment rights, and said the access ordinance harmed an incumbent operator's ability to market and pay for the service.

Broward's strategy shift appears to reflect changes in the business climate since Middlebrooks rendered his decision. Since then, AOL Time Warner Inc. accepted the Federal Trade Commission's open-access conditions in order to close its merger.

The county is currently talking with cable plaintiffs in hopes of reaching a possible settlement, said Larry Lymas-Johnson of the Broward County Attorney's Office. An AT&T spokesman confirmed the talks last week.

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