Pittsburgh Adopts Non-Discriminatory Open Access to Broadband Cable

(December 29, 1999) The Pittsburgh City Council approved an agreement with AT&T Cable Services that provides that AT&T must provide ISPs open access to its broadband cable facilities in the event that AT&T provides, or is compelled to provide, open access elsewhere.

The City of Pittsburgh, which is the local cable franchising authority in Pittsburgh, Pennsylvania, approved the Cable Franchise Agreement with AT&T Cable Services on December 28. In addition to providing traditional cable programming, AT&T, and its cable subsidiaries, are in the process of rolling out broadband Internet access via cable modems. However, it may be two years before AT&T provides cable modem service in Pittsburgh.

Internet Service Providers (ISPs) which compete with AT&T have lobbied local franchising authorities to impose an open access (or forced access) condition upon cable service providers.

See, Tech Law Journal Summary of AT&T v. Portland.

The agreement provides that AT&T must provide open access, but only if it provides open access in another jurisdiction. The City of Portland passed an ordinance on December 12, 1998 which imposed an open access condition upon AT&T. That matter is currently being reviewed by the U.S. Court of Appeals for the 9th Circuit. If the courts compel AT&T to provide open access in Portland, that would trigger the requirement that AT&T provide open access in Pittsburgh.

The Agreement provides that AT&T will "enter into good faith negotiations with the City to provide non-discriminatory access to its cable modem platform by requesting Internet service providers and on-line service providers, irrespective of whether such providers are affiliated with the Franchisee" when any of several conditions precedent are met.

AT&T's obligation to provide open access in Pittsburgh would be triggered if either:

1. AT&T agrees with another local community to provide open access,
2. The FCC orders open access, or,
3. The Courts order AT&T to provide open access.

However, the open access requirement would "not be effective until such court decision is final, with no appeals remaining."

Also, the agreement still leaves AT&T the option of imposing open access at a later date. And, it leaves AT&T the option of challenging that decision in court.

The vote of the City Council was 6 to 1, with one member abstaining.

"Today's vote in Pittsburgh was a win for consumers," said Rich Bond, of the openNET Coalition. "AT&T was forced to accept a self-executing, non-discriminatory open access provision that guarantees that if AT&T voluntarily or involuntarily signs an open access agreement with any other governmental entity or becomes subject to an open access requirement anywhere else in the United States, it must offer the same terms to Internet service providers operating in Pittsburgh." OpenNET advocates for open cable access on behalf of ISPs which compete with AT&T.

An OpenNET press release elaborated upon the agreement: "The Pittsburgh agreement is unique because it represents the first time AT&T has voluntarily agreed to accept a self-executing open access requirement. It also stands as a significant deviation from AT&T's announcement in early December that it would provide access to unaffiliated ISPs on its cable systems, but only after its exclusive contract with Excite@Home expires in 2002."

AT&T perceives the agreement differently. "We don't believe that this changes our policy, or breaks new ground," said Dan Garfinkel, Regional Director of Communications for AT&T Cable Services. Moreover, "it was far from the focus of this negotiation."

Garfinkel also points out that AT&T is not now providing cable Internet access in Pittsburgh, and that it will be two and one half years before AT&T completes a rebuild of its facilities to enable broadband cable Internet access. "By the time the rebuild is complete the issue may be moot," said Garfinkel.

Excerpt from the Pittsburgh Cable Franchise Agreement.
Re: open access language.
Date: December 28, 1999.
Source: City of Pittsburgh.

4.15 Non-Discriminatory Access to Cable Modem Platform

(A). Conditions Precedent. When one of the following conditions precedent is met, Franchisee agrees to enter into good faith negotiations with the City to provide non-discriminatory access to its cable modem platform by requesting Internet service providers and on-line service providers, irrespective of whether such providers are affiliated with the Franchisee. Negotiations will cover, but not be limited to, the following items:  the timetable for implementation, the method of implementation, including rates to be charged to such providers, identification of additional service providers, the process by which such provider(s) will be afforded access to the Cable System, any impact on Subscriber rates, and any impact on Franchisee's operations.  The parties agree that such negotiations shall commence within ten (10) days of the occurrence of any of the  following conditions precedent and that if the parties cannot reach agreement on the terms of such provision within 120 days, the City reserves its right to prescribe such requirement.  Such requirement would be effective upon enactment, unless such action was based on a court decision as provided in Section C, in which event such requirement will not be effective until such court decision is final, with no appeals remaining.

(1).  Franchisee or any Affiliated Entity agrees with a franchise authority to provide access to its broadband Internet access transport services to one or more unaffiliated Internet service provider(s) in any of its cable systems;

(2).  Upon entry of an order of the FCC imposing a requirement on Franchisee or any of its Affiliated Entities to provide access to its broadband Internet access transport services to one or more unaffiliated Internet service provider(s) in any of its cable systems;

(3). Upon entry of a final judgment of a decision in federal court upholding the imposition of a requirement on Franchisee of any of its Affiliated Entities to provide access to its broadband Internet access transport services to one or more unaffiliated Internet service provider(s) in any of its cable systems.

(B).  City's Authority.  Approval of this Franchise does not waive or otherwise diminish any lawful authority of the City to otherwise require the provision of nondiscriminatory access to the Franchisee's Cable System for providers of Internet access service.  Neither City nor Franchisee have waived any rights, obligations, claims, defenses or remedies regarding the City's authority to impose such conditions.