Atlanta -- Municipal officials nationwide have begun
closing ranks behind Oregon's Portland and Multnomah counties in their open-access
fight against AT&T Corp.
A 28-page friend-of-the-court brief filed by San Francisco
with the Ninth Circuit Court of Appeals was considered a must-read at last week's
National Association of Telecommunications Officers and Advisors conference here.
The brief was notable for the number of cities, counties
and organizations that want the appeals court to uphold cities' rights to consider
the access question when reviewing franchise transfers.
"I think the feeling here is, 'Go, Portland,
go,'" one conference attendee said.
In addition to NATOA, others signing the brief included the
U.S. Conference of Mayors; the National League of Cities; the National Association of
Counties; King County, Wash.; Montgomery County, Md.; Jefferson County, Mo.; and the
cities of Atlanta; Baltimore; Boston; Dearborn, Mich.; New York; and San Diego, San
Francisco, San Jose and Walnut Creek, Calif.
However, the brief was not without some controversy.
Los Angeles was listed among supporters of Portland and
Multnomah counties despite a recommendation from the city's Information and
Technology Agency against requiring open access and Mayor Dick Reardon's well-known
opposition to such a policy.
"I don't know where that came from," ITA
assistant general manager Jesse Juarros said, "and I don't think the City
Council is going to be happy about it."
Sources indicated that the Los Angeles city attorney's
office signed on without checking with the ITA or the mayor's office, resulting in a
Portland and Multnomah counties touched off the access
debate when they demanded that AT&T open its @Home Network to unaffiliated
Internet-service providers. The decision was upheld by a district court, prompting an
appeal by the company.
AT&T filed its final comments with the Ninth Circuit
last week in advance of oral arguments in the case, which are scheduled for Nov. 3 in
The company again laid out its case that federal law
pre-empts local jurisdictions from imposing equal access as a condition for transferring
Specifically, it said Section 541 of the Cable Act
prohibits local franchising authorities from making transfers contingent on cable
operators providing telecommunications services to third parties.
"That's a pretty powerful argument, in our
view," AT&T spokesman Jim McGann said. "It's black-and-white. Federal
law does not give LFAs jurisdiction in this matter."
Outgoing NATOA president Jane Lawton conceded that local
governments were not overwhelmingly endorsing Portland and Multnomah counties'
position, but rather, that they were "supporting a city's right to look at open
access. But I think it does say that people are starting to focus on the issue."
Accordingly, the brief said overturning the district court
would allow cable operators to challenge every decision made by a franchising authority.
"Each condition imposed by a LFA -- no matter how
important, no matter how necessary -- could be challenged as pre-empted under federal
law," San Francisco city attorney Louise Renne wrote.
Renne said a goal of the 1984 Cable Act was to "assure
that cable systems are responsive to the needs and interests of the local community."
Toward that end, it gave LFAs the right to consider "future cable-related community
needs and interests" when considering transfers.
In her most powerful argument, Renne noted that the act
allows LFAs to deny transfers if such grants would undermine competition -- a provision
enacted to overturn a district court ruling that gave the Federal Communications
Commission the sole authority to deny transfers on competitive grounds.