The Fourth Circuit Court of Appeals will decide whether AT & T Broadband must allow outside Internet-service providers onto the cable network it is acquiring in Henrico County, Va.
County officials said last week they would appeal a recent U.S. District Court decision that scuttled an ordinance which would make a transfer of MediaOne Group Inc.'s local cable franchise contingent on AT & T Broadband unbundling the system.
Federal Judge Richard L. Williams recently struck down the ordinance, declaring that it was pre-empted by the Telecommunications Act of 1996.
But local officials were "cautiously optimistic" that the Fourth Circuit will live up to its reputation for protecting municipal rights. In several cases, it has upheld cities' rights to withhold cellular-phone-tower permits sought by wireless operators, Henrico County Attorney Joseph Rapazarda said.
"They have been very protective of a local government's rights," Rapazarda said of the appeals court judges. "But I don't know about cable television, so we're kind of on new ground here. But we believe our argument is right, and we hope to convince the Fourth Circuit."
In a prepared statement, AT & T Corp. general counsel Jim Cicconi said Williams agreed with every argument advanced by AT & T.
"On the key question of whether local governments have the right to require cable companies to make their facilities available to Internet-service providers, Judge Williams stated clearly that they have no such right," Cicconi said.
As a result, the open-access issue is now on "life support and fading fast," he added.
Cicconi contended that forced-access advocacy has been funded largely by such "local monopolies" as local-exchange carriers SBC Communications Inc. and GTE Corp.-"companies whose sole purpose in the debate is to hamstring any potential competitor. Clearly, that would not be in the best interest of consumers, as local authorities across the United States are recognizing increasingly."
Meanwhile, GTE and Bell Atlantic Corp., which are intervenors in the case, expect the Fourth Circuit to schedule oral arguments for sometime this fall.
"We think Judge Williams was in error," said Andrew McBride, an attorney with Cooper, Carvin & Rosenthal, the Washington, D.C.-based law firm representing the two telcos. "We believe that local governments do have the right to regulate cable-modem service."