Oregon's Portland and Multnomah counties responded
last week to AT&T Corp.'s bid to reverse a court ruling that allows the two local
jurisdictions to unbundle the company's broadband pipe.
In reply comments to the Ninth Circuit Court of Appeals,
the local franchising authorities said AT&T has shifted the focus of its case by
introducing claims that were never made before the lower court that reached the decision
the company is seeking to overturn.
AT&T wants the appeals court to throw out an Oregon
District Court ruling that declared that Portland and Multnomah counties have the
authority to require AT&T to allow unaffiliated Internet-service providers on its
Excite@Home high-speed network.
The LFAs said AT&T now wants the appeals court to
consider the merits of an open-access policy, rather than the jurisdictional claims
rejected by District Court Judge Owen Panner.
"It suggests that they know their case is not as
clear-cut as they claim," said Joe Van Eaton, an attorney with Miller & Van
Eaton, a Washington, D.C.-based firm representing the local jurisdictions.
Experts have noted that AT&T's appeals-court
filing spent less time challenging the counties' authority and more time alleging
violations of communications law.
But Van Eaton said it would be improper for the appellate
court to consider "claims never presented to the district court."
"The role of the appeals court is to decide whether
the district court made a rational ruling based on the record before it," he said.
"AT&T wants to go outside the record and make it seem like a policy
AT&T officials had no immediate reaction to the reply
comments. The company will submit its own final briefs to the court this week.
However, Excite@Home Corp. issued a statement saying that
upholding the lower court would result in "a morass of conflicting regulations
enacted by 30,000 local jurisdictions."
It also noted that the Federal Communications Commission
has concluded that regulating the Internet "is not in the best interests of consumers
or the industry."
In their filing, the LFAs said the FCC's amicus curiae
brief in the case rejected AT&T's argument that the commission does not have the
authority to impose open access.
The filing took issue with AT&T's claim that
Portland and Multnomah counties violated the Cable Act by imposing common-carrier
requirements on the company.
It noted that companies that are not common carriers have
been required to "open their facilities to competitors" in order to protect
"The Portland open-access condition, like those
requirements, has nothing to do with common carriage and everything to do with protecting
competition," according to the filing.
And in the case of cable, the act allows LFAs to deny a
cable-franchise transfer "if such a grant would reduce competition in their
markets," the filing added.
The open-access debate was triggered when Portland and
Multnomah counties refused to transfer their Tele-Communications Inc. franchises unless
AT&T agreed to allow ISPs on its network.
As for AT&T's allegation that its First Amendment
rights would be violated by open access, the reply brief noted that open access does not
require the company to carry or associate itself with "any particular speech."
"The city and county rule is simply a facilities
requirement that affects the economic arrangements under which competitors will be able to
reach subscribers," it said.
In a related development last week, the appeals court
unexpectedly postponed the Oct. 6 oral arguments in AT&T's appeal. At press time,
no new date had been set.