Two Federal Judges, Two Takes on Access - Multichannel

Two Federal Judges, Two Takes on Access

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A written decision on open access arising from an ordinance in Henrico County, Va., demonstrated how two judges on different coasts could review similar sets of facts on an issue and reach vastly different conclusions.

Senior U.S. District Court Judge Richard L. Williams of Richmond, Va., said in a written ruling issued May 10 that the county's board of supervisors is pre-empted by federal law from regulating open access, adding that the local ruling is inconsistent with four different provisions of the 1992 Communications Act.

The county's open-access provision forces the plaintiff there, MediaOne Group Inc., to provide a telecommunications facility, which is an improper application of common-carrier policy, the judge said. MediaOne's Road Runner Internet service is actually a cable service, he stated.

Henrico County's ordinance would force MediaOne to provide indiscriminate access to its cable facilities to all Internet-service providers-a prohibited common-carrier regulation, the judge further declared.

MediaOne would be improperly barred from making individual decisions on whether to share capacity on its respective cable systems with any one or more ISPs and on what terms, he added.

In contrast, U.S. District Court Judge Owen Panner in Oregon said the common-carrier provisions of the federal act offer little guidance on telecommunications definitions. His interpretation was that mandating open access was not the same as regulating a cable system as a common carrier.

Congress intended to interfere as little as possible with local authorities in their efforts to foster competition, Panner said. In his interpretation, this means cities have the authority to regulate in new areas, barring an explicit prohibition against such action.

Both MediaOne in Virginia and AT & T Corp. in Portland, Ore., contended that open access conflicts with the federal prohibition against conditioning or restricting a cable system's use of any type of subscriber equipment. Both judges agreed.

Williams noted that Media-One will have to technologically modify its existing system to open the platform, and that requirement would be illegal, he opined.

But Panner noted that the access provision does not specify how the operators must open the platform. Therefore, in his opinion, the Portland open-access provision was not illegal.

In his written report on the summary-judgment request by MediaOne, Williams did not address First Amendment issues, areas of contract or restraint-of-commerce claims, as did Panner. Instead, Williams was asked to determine whether Henrico County's supervisors exceeded their state statutory authority.

Virginia law allows supervisors to establish fees and rates, to assign channels for public use, to operate those channels and to restrict or condition entry by the cable operator into the TV and VCR sale, rental and repair business. They can also regulate basic rates and customer-service standards.

Open access fits in none of those categories, according to Williams.

Meanwhile, on the state legislative front, Iowa, Rhode Island and Missouri have have declined to act on GTE Corp.-backed open-access proposals this year.