FCC to Court: Punt Local-Access Law

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Washington-The Federal Communications Commission has decided to take a more aggressive stance against local governments that want to force cable operators to provide access to competing Internet-service providers.

The FCC has advised the U.S. Court of Appeals for the Fourth Circuit to strike down a law passed by Henrico County, Va., that required AT & T Corp. to provide open access if it wanted to gain control of the MediaOne Group Inc. franchise.

The FCC said Henrico's law violated federal communications law because it required AT & T to "provide access to telecommunications facilities." The Henrico case, decided in May, is on appeal after a lower-court judge ruled the county's open-access requirement was illegal under several provisions of federal cable law.

In contrast, the FCC did not take a position last August when it filed a brief in a similar case involving the city of Portland, Ore., and AT & T.

AT & T won that case in June, although the 9th U.S. Circuit Court of Appeals held that cable broadband access is, in part, a telecommunications service.

An FCC attorney said he did not know why the agency decided to urge the court to rule against Henrico after it took a neutral stance in the Portland situation.

The FCC's intervention on cable's side was somewhat controversial. Commissioner Harold Furchtgott-Roth declined to join the 25-page brief because the agency had not classified cable Internet infrastructure as a telecommunications facility in a formal rulemaking.

"We just worry about breaking new legal ground in a brief. It seems to him not a good way to go about these sorts of questions," said Helgi Walker, Furchtgott-Roth's senior legal adviser.

Open-access advocate Andrew Jay Schwartzman, CEO of the Media Access Project, said the FCC's position in the Henrico case was premature in light of FCC chairman William Kennard's June 30 promise to launch a proceeding to examine cable-access regulatory classifications.

"It bothers me for the same reason Harold Furchtgott-Roth decided not to sign the brief: The commission should not be in the business of rendering off-the-cuff legal opinions for the first time without a formal proceeding," Schwartzman said.

National Cable Television Association senior vice president of law and regulatory policy Dan Brenner applauded the FCC's move as confirmation of what commission officials have said publicly about their opposition to thousands of local governments crafting a hodgepodge of open-access regulations.

"I think it is positive news," Brenner said. "It is a welcome step, but it's an inevitable step from the [Portland case]."

In its brief, the FCC recounted that the Henrico case was decided on a finding that Internet over cable was a cable service and that the Portland case was decided on a finding that Internet over cable was in part a telecommunications service.

The definitions are important because classification of Internet access as a cable service could block both the FCC and local governments from imposing open access, but classification as a telecommunications service could permit the FCC to require cable to provide access to competing ISPs.

The FCC's brief urged the court to stay out of that complex debate, asserting the case should be decided on the narrow holding that Henrico's ordinance required the cable operator to provide telecommunications facilities-the "pipe" between third-party ISPs and end-users-in violation of a federal law prohibiting such regulation in local review of a franchise transfer or renewal.

"This court need decide no more than that to resolve the entire dispute in this case," the commission said.

Barbara Esbin, a Washington, D.C.-based cable attorney with Dow, Lohnes & Albertson and an expert on cable Internet legal issues, said the FCC's goal in the Henrico brief was to seek a ruling that didn't further complicate the legal landscape at a time when the agency is planning to decide where cable Internet fits within federal law.

The FCC "gave [the court] a way to get this case off their books without adding to the complexity of an already-complex legal picture concerning the appropriate regulatory classification of Internet over cable," she added.

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