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Tech Law Journal |
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Before the
EX PARTE COMMENTS Norman D. Thomas, Chair January 29, 1999 TABLE OF CONTENTS
INTRODUCTION "Those cut off from these high-speed networks today will find themselves cut off from the economic opportunities of tomorrow. And more importantly, they will be cut off from the most important network that there is – the network of our national community." FCC Chairman William Kennard The Mt. Hood Cable Regulatory Commission ("MHCRC") is an appointed group of ordinary citizens in the city and eastern suburbs of Portland, Oregon. The MHCRC was established to handle cable franchising and regulatory matters on behalf of six local governments. The MHCRC meets monthly, and has for a number of years been accustomed to toiling in relative obscurity. MHCRC members typically view their task as primarily one of serving the public interest, protecting cable consumers, monitoring franchise compliance, and following as best we can the policies set forth by Congress, the FCC, applicable law, and the provisions of our cable franchises. On the night of November 16, 1998, the MHCRC’s comfortable and customary anonymity ended. On that date, the MHCRC recommended that nondiscriminatory access to AT&T/TCI’s planned high-speed internet cable modem platform be required as a condition of Portland and Multnomah County approving a change in control of TCI’s local cable franchises to AT&T. It is in part the purpose of these ex parte comments to set forth with some particularity the policy and legal factors underlying the MHCRC recommendation. An initial survey of several of the factors influencing the MHCRC would include, the following, among others:
A more detailed survey of these factors is developed in the remainder of these comments. On December 17, 1998, the Multnomah County Board of Commissioners and the Portland City Council upheld the MHCRC recommendation by a nearly unanimous margin. To the best of our knowledge, Portland and Multnomah County thus became the first governmental entities in the nation to impose such a condition in a cable regulatory process. TCI and AT&T on December 29, 1998 failed to submit an unqualified acceptance of the transfer conditions imposed by the City of Portland ("City") and Multnomah County ("County"). The proposed change in control was therefore automatically denied as of that date by operation of the original City ordinance and County resolution. On January 19, 1998, TCI and AT&T filed a Complaint against the City and the County in the United States District Court for the District of Oregon seeking "a declaratory judgment that the condition sought to be imposed by the (City and County) requiring carriage by TCI of unaffiliated providers of online and Internet access services, is unlawful and a violation of AT&T’s and TCI’s civil rights;" and "an award of damages in an amount to be proved at trial; and costs and attorneys fees." These ex parte comments are for the purpose of directly providing updated information to the FCC regarding the MHCRC, City and County deliberations and action on this proposed change in control, and to inform the FCC of the subsequent litigation that has been filed against the City and County by TCI and AT&T. The litigation has been filed despite earnest City and County efforts (facilitated in part by the direct involvement of Oregon’s senior United States Senator) to explore alternatives and compromises short of litigation. These comments are also intended to respectfully urge that the FCC promptly open a regulatory proceeding to assist in clarifying the matters at issue here, so that a nationwide resolution of these important national communications matters can be expedited. Particularly in light of the litigation now facing Portland and Multnomah County (and possibly other local governments as well in the near future), a federal solution led by the FCC is urgently requested. In making its original recommendation to Portland and Multnomah County, the MHCRC consciously sought to carry out what the MHCRC and its staff sincerely understood to be a broad, federally-encouraged policy of providing for competition, deregulation, and an open and accessible marketplace in communications and Internet access. The FCC’s current open docket on the AT&T/TCI transfer presents an ideal opportunity for the FCC to consider the implementation of an open cable access policy at a national level. Whether the FCC chooses to impose such a requirement on the AT&T/TCI transfer request now pending, or whether the FCC chooses instead to open a separate rulemaking to consider the benefits of imposing or allowing an open access requirement industrywide on cable’s planned high speed cable modem platform, the need for prompt and decisive FCC guidance in this area is clearly urgent. II. CHRONOLOGICAL PROCESS OVERVIEW OF MHCRC/PORTLAND/MULTNOMAH CONSIDERATION OF AT&T/TCI REQUEST FOR CHANGE OF CONTROL "The challenge for the regulator, at each step, is to examine the underlying purposes and policy goals behind existing regulatory categories, and to apply them only where those purposes and policy goals make sense. Any regulatory efforts in this arena should begin with an analysis of whether the operator in question exercises undue market power over an essential service or facility necessary to provide an essential service." Barbara Esbin To understand the genesis of the imposition of the "open access" condition imposed by Portland and Multnomah County, it will be necessary to review the history of local franchising authority consideration of the change of control of TCI cable franchises to AT&T here. The process throughout has been governed by the applicable section of Title VI of the Communications Act, and relevant FCC rules. A chronology, highlighting the development and imposition of the cable modem open access condition by Portland and Multnomah County, is as follows:
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