Portland Anxious to Hear Case Against Open Access

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Washington -- Portland, Ore., officials are eager to hear
the arguments that federal regulators make before the 9th U.S. Circuit Court of Appeals in
support of AT&T's position on open access.

David Olson, Portland's cable franchising director, spent
most of his time at the Strategic Research Institute's Cable/Telco Franchising and
Competition Conference here defending the city's decision to require AT&T to open the
Excite@Home platform to unaffiliated Internet-service providers.

Most of the questions he heard revolved around Federal
Communications Commission chairman William Kennard's decision to support AT&T's appeal
of a court ruling allowing Portland and Multnomah County, Ore., to require
non-discriminatory equal access, a mandate upheld by a federal district court.

"It'll be an interesting piece of legal writing,"
Olson said. "I don't know how they're going to write themselves out of this
particular box, but I'm sure they will do so brilliantly."

He said Kennard faces the dilemma of supporting AT&T's
argument that local franchising authorities (LFAs) have no power to require equal access,
while maintaining that his agency has the authority to implement a "national
policy."

However, Title 6 of the Communications Act grants federal,
state and local officials the right to "promote competition," Olson said.

"So we'll be very interested see what the FCC has to
say, because to some extent their jurisdiction (over the issue) is similar to ours,"
he said. "If they have jurisdiction, then we have jurisdiction."

During a panel comparing Portland with neighboring
Vancouver, Wash. -- where the former Tele-Communications Inc. franchise was transferred to
AT&T without an open-access provision -- Olson said Portland officials knew early on
that "this was not a normal cable transfer."

"It was the largest cable company in the world, being
transferred to the largest telephone company in the world," he said. "And we
knew we'd be proceeding under a legal cloud."

Olson said the city has "tried everything" to
persuade AT&T to roll out Excite@Home in Portland while the company's legal challenge
is heard.

"It's a great service," he said. "I'd like
to see it rolled out."

However, Deb Luppold, AT&T director of franchising and
local government relations, defended the decision not to begin service, even "if it
imperils our market share."

She said introducing Excite@Home would trigger Portland's
equal-access provision, thereby putting the company in violation of its franchise.

Moreover, if AT&T did introduce the service, it would
trigger so-called "me too" provisions that the company agreed to in other cities
during the franchise-transfer process, sources said. Those provisions require local open
access if AT&T unbundles its network elsewhere.

Despite their argument over equal access, Luppold said that
in the past, the two sides have proven they can put aside their differences when
necessary.

For example, over the course of six weeks last year, she
and Olson managed to negotiate an extension to the local franchise, which called for an
upgrade of the system and construction of an institutional network.

"I think that speaks to how well we can work
together," she said. "(Open access) has been an interesting process. But despite
the fact that we disagree, we still manage to have a good time."

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