Cable's fight against open-access legislation was set
back in Florida this week, while lobbyists made headway in four states, quashing
legislation before it even emerged from committee.
The Florida challenge pitted Comcast Corp. and Advanced
Communications, which operate in Broward County, against the Board of Supervisors there.
The board voted last year to open access to cable's high-speed-data platform.
The operators sued in U.S. District Court for the 11th
District of Southern Florida in Miami, making claims similar to arguments on appeal in a
case against the city of Portland, Ore., by AT&T Corp.
The Florida operators claimed that county legislation is
pre-empted by federal authority, it violates due process and commerce regulations, it
impairs contracts and it constitutes an illegal taking.
The setback came when the judge hearing the challenge,
Donald Middlebrooks, dismissed six of the seven counts of the operators' challenge
The issues are not yet "ripe" in his opinion, as
the plaintiffs have yet to roll out the broadband services they seek to protect. He let a
challenge on First Amendment grounds go forward.
"We don't necessarily agree. We will go forward
on the First Amendment claim. We feel we have a strong case," Comcast vice president
of external affairs Joe Waz said.
"Judge Middlebrooks has decisively undercut 99 percent
of the cable industry's challenge. The remaining claim -- an unsupported First
Amendment argument -- is the weakest one advanced by the plaintiffs, and we expect it to
meet the same fate in the near term," said Rich Bond, co-director of the OpenNet
Meanwhile, two more states spiked legislation to open the
data platform. In Pennsylvania, the House Consumer Affairs Committee voted 15-8 to table a
proposal there. It can't be resurrected until next year.
In Idaho, the House State Affairs Committee rejected
similar regulation by a vote of 16-4. Cable lobbyists reported that the bill would have
been more lopsided absent the support of the state's electric utilities, which want
to get into the Internet-service-provision business themselves.
To date, those states, Virginia, New Hampshire and Utah
have rejected legislation.
The bills were brought to legislators by members of the
OpenNet Coalition, including regional telcos and Internet-service providers GTE Corp. and
Bell Atlantic Corp. Lobbyists said America Online Inc., formerly a vociferous backer of
open access, was notably quiet on the debate last week.
The failure of the bills was lauded by Hands Off the
"The idea of regulating Internet access is clearly
falling down under the weight of its own contradictions. The economics of the Internet are
constantly changing, with new, innovative arrangements appearing every month," HOTI
president Christopher Wolf said in a prepared statement. "The notion that government
could even begin to regulate such lightning advances is fast losing credibility with
lawmakers and regulators."
But the issue still festers at the local level. The
Montgomery County (Md.) Council took testimony this week from proponents of an open-access
clause in the transfer agreement of Cable TV Montgomery to Comcast.
Proponents testified that open access is fully consistent
with "consumer-friendly deregulation" that has occurred in both the telephone
and electrical industries.
"For over two decades, cable companies have used their
monopoly over the delivery of video services to force content on consumers, and here they
go again. Do we really trust the cable company to be consumers' gateway to the
Internet?" asked David Troy, spokesman for the Maryland Open Access Coalition.
County Executive Douglas Duncan will analyze the arguments
before presenting a recommendation to the council, staffers said.