McCain Plans an Access Bill

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Sen. John McCain (R-Ariz.) straddles the line between conservatism and populism like no one else.

He voted against the Telecommunications Act of 1996, saying the measure was too regulatory.

Last week, McCain revealed that he's about to move in the opposition direction by unveiling legislation that would require cable operators to open their lines to competing Internet-service providers under certain circumstances.

"We hope to introduce it after the recess," McCain said. The Senate returns from the Memorial Day recess June 3.

When he ran for president in 2000, McCain became a media darling because of his openness with the press. But McCain last week brushed off a reporter who sought details about his planned cable-access legislation.

Neither McCain nor his staff wanted to talk about the bill, because many details were still in gestation, McCain spokeswoman Pia Pialorsi said. A telephone-industry source said the senator would say little while seeking Senate co-sponsors for his bill.

"They have been very close to the vest about it," said one cable lobbyist.

McCain's staff has circulated a draft of the legislation, and some who've seen it were not sure of the extent to which it would reflect what will be introduced.

According to some sources, McCain's bill would shield cable from access requirements for five years. But it was unclear when the five-year period would begin to toll — on the date of the bill's enactment, on the date a cable operator launched broadband Internet service, or on the date data-over-cable service became available to all homes in a given market.

ONE LOOPHOLE

A cable source said no access rules would apply in a market where the cable operator faces a high-speed-data competitor that offers multiple ISPs. In others words, a cable operator would not have to open up in a market where it faced a phone company that offered several ISPs on its digital subscriber line network.

McCain's bill is expected to give the FCC authority to carry out the provisions of the bill. A cable source said the agency would be authorized to impose access requirements on cable only when a party seeking access could demonstrate that the cable operator was abusing its market power.

"I've heard all of that as of a number weeks ago. It all sounds consistent with what I heard," said Consumer Union Washington office co-director Gene Kimmelman, a McCain ally on various cable-industry matters, especially rates.

Kimmelman and other consumer advocates want to see cable-modem service regulated as a telecommunications service, which would afford all ISPs with access to cable regardless of the operator's market power.

"From my point of view, we want cable systems to be open like telephone systems, so [McCain's approach] is not particularly to my liking," he said.

Kimmelman called McCain's effort "a little bit of a prod to the cable industry" to open up to other ISPs.

"It's very encouraging to see Senator McCain acknowledge that there is a significant problem here with closed systems that have market power," he said.

'NIL' PROSPECTS

McCain's bill will likely garner a few headlines, but not much else. Because this is an election year, Congress will be busy in June and July, but quit for the year in late September or early October to campaign. At this time, McCain also lacks a House sponsor for his legislation.

The chances of McCain's bill becoming law this year, as one cable source put, are "nil."

National Cable & Telecommunications Association spokesman Rob Stoddard said the trade group would postpone comment on the bill until after the senator introduces it.

One cable source said the bill — coming from a maverick Senate Republican — could send a signal to the FCC that it has the necessary political cover to adopt cable access rules in circumstances where cable operators have market power in the provision of high-speed Internet access.

In March, the FCC classified cable-modem service as an interstate information service, a regulatory category that has not had to shoulder the burden of open-access rules. Importantly, the agency launched a new rulemaking to determine whether the application of access rules on cable are "necessary or appropriate."

According to one source, the FCC probably already believes it has the authority to impose access rules on cable information services, regardless of the fate of the McCain legislation.

Another factor in the mix is that several parties — phone companies, ISPs, and local governments chief among them — have asked the 9th U.S. Circuit Court of Appeals to reverse the FCC's classification of cable-modem service. A date for oral arguments in the case has not been set.

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