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Editor's Notes: No. 99-35609 IN THE UNITED STATES COURT OF APPEALS AT&T CORP., TELECOMMUNICATIONS, INC., Appellants, v. CITY OF PORTLAND, et al., Appellees. On Appeal from the United States District Court for the District of Oregon Case No. CV 99-65 PA
CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, U S WEST Interprise America, Inc., GTE Internetworking Incorporated, and OGC Telecomm, Ltd. provide the following corporate disclosure statement. U S WEST Interprise America, Inc. is a wholly owned subsidiary of U S WEST, Inc., which is a publicly held company. GTE Internetworking Incorporated is a wholly owned subsidiary of GTE Corporation, which is a publicly held company. OGC Telecomm, Ltd. has no parent corporations, and no publicly held company
owns 10% or more of its stock.
AT&T’s appeal proceeds from a fundamentally flawed concept of federalism. AT&T asserts that the Communications Act of 1934, as amended (the “Act”), preempts the nondiscrimination requirement imposed by the City of Portland and Multnomah County (collectively “Portland”), in the exercise of their traditional authority to franchise local cable systems. The FCC does not support AT&T’s view of the Act, and the four statutory provisions on which AT&T relies do not address this question. What the Act does establish is that local franchising authorities (“LFAs”) retain power to address competitive questions relating to the delivery of cable service in the context of a cable franchise transfer. In the absence of a clear and unambiguous intent by Congress to preempt local law, the district court properly upheld Portland’s action and avoided treading needlessly on state sovereignty. Portland has exercised its authority to condition its approval of the transfer of control over TCI’s cable franchises to AT&T in a manner narrowly targeted to address a serious competitive concern. If AT&T later chooses to establish a high-speed Internet access platform over its cable facilities, Portland’s condition will require it to permit affiliated and unaffiliated Internet service providers (“ISPs”) to access those bottleneck facilities on a nondiscriminatory basis. In arguing that this condition conflicts with the Act, AT&T ignores well-established limits on federal preemption of local authority. As AT&T itself recognized in an analogous FCC proceeding on access to essential telephone company facilities only three months ago: “[A]ny preemption analysis begins with a ‘presumption against the pre-emption of state police power regulations,’ and that presumption may not be overcome, and pre-emption found, ‘absen[t] an unambiguous congressional mandate to that effect.’”[1] The Supreme Court has further cautioned, “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides . . . the usual constitutional balance between the States and the Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). None of the four provisions on which AT&T relies to support its preemption claim comes close to satisfying this standard. Far from preempting Portland’s action, these provisions simply do not address whether LFAs may require nondiscriminatory access to cable modem facilities. Congress made clear that the areas it did preempt in the Act were narrow exceptions to its general rule of “reliance on the local franchising process as the primary means of cable television regulation.” H.R. Rep. No. 98-934, at 19 (1984). Section 556[2] expressly preserves state and local police-power authority to impose obligations in addition to those imposed by the Act. See 47 U.S.C. § 556(a); Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 386-87 (9th Cir. 1995). And section 533(d)(2) confirms that LFAs may act in reviewing franchise transfers to ensure that competition in the delivery of cable service is not impaired. See 47 U.S.C. § 533(d)(2). While the absence of any express prohibition of Portland’s action is a sufficient basis for affirming the district court’s judgment, the Act’s affirmative recognition of LFA authority in these precise circumstances confirms the bankruptcy of AT&T’s preemption argument. Based on the allegations in AT&T’s complaint and the arguments made to the district court, this question of LFA authority is the only statutory issue before the Court. AT&T attempts to obscure this fact by suggesting that the FCC pursued a sound policy in declining (for now) to impose a national nondiscriminatory access requirement — and that Portland pursued an unwise policy in seeking to protect competition for the benefit of its own local cable subscribers. See AT&T Br. at 2-3, 15-17. As the district court recognized, however, whether AT&T or a court considers Portland’s “open access requirement [to be] good policy” has no bearing on the question whether Congress intended to preempt Portland’s power to impose that franchise requirement. Opinion, AT&T E.R. at 200. And as the FCC’s amicus brief makes clear, the FCC has not sought to preempt Portland’s decision as a matter of agency preemption. AT&T also contends that Portland’s nondiscrimination condition violates the First Amendment and the Commerce Clause. We do not address those issues in this brief, but agree with Portland and defendant-intervenor-appellee Oregon Internet Service Providers Association (“ORISPA”) that the Constitution imposes no impediment to the nondiscrimination condition. JURISDICTIONAL STATEMENT U S WEST Interprise America, Inc., GTE Internetworking Incorporated, and OGC Telecomm, Ltd. adopt AT&T’s jurisdictional statement. STATEMENT OF ISSUE Whether, in light of the strong presumption against federal preemption of local law, the Communications Act preempts Portland’s nondiscriminatory access condition. STATEMENT OF FACTS The Role of LFAs in Regulating Cable Service AT&T’s basic position is that the Act provides LFAs with authority “only over uses of public rights-of-way and related aspects of cable service.” AT&T Br. at 8. This view ignores the well-established — and indeed primary — role of LFAs in regulating cable systems pursuant to their police power. Congress has excluded state and local governments from the regulation of other communications services, such as broadcasting.[3] But the history of cable regulation has been “far different.”[4] Long before Congress first addressed cable regulation in the Cable Communications Policy Act of 1984 (“1984 Cable Act”) (codified in Title VI of the Act), the FCC had recognized that “local governments are inescapably involved in the process [of franchising] because cable makes use of streets and ways and because local authorities are able to bring a special expertness to such matters.”[5] Indeed, early on, the FCC “disclaimed any power to regulate cable television.”[6] When the FCC first ventured to exercise jurisdiction over cable systems, it regulated matters such as signal quality and the carriage of broadcast stations only as ancillary to its authority over broadcasting,[7] but it decided to leave to LFAs such matters as the award and transfer of franchises, noting that it viewed its “role as one of cooperating with local franchising authorities . . . to the maximum extent possible . . . .”[8] The FCC characterized its approach as a “deliberately structured dualism” of authority between itself and the LFAs.[9] Congress endorsed this expansive LFA authority to regulate cable operators in the 1984 Cable Act, as the Supreme Court later recognized. See City of New York v. FCC, 486 U.S. 57, 67 (1988). A key goal of that legislation was to preserve and strengthen the franchise process, under which LFAs would “assure that cable systems are responsive to the needs and interests of the local community.” 47 U.S.C. § 521(2). Indeed, the 1984 Cable Act “continue[d] reliance on the local franchising process as the primary means of cable television regulation.” H.R. Rep. No. 98-934, at 19 (emphasis added). Accordingly, the Act continued to “permit[] the local franchising authorities to regulate many aspects of cable services, facilities, and equipment,” other than technical standards relating to signal quality. City of New York, 486 U.S. at 67.[10] In section 556, Congress confirmed this basic principle of federalism by expressly recognizing that LFAs may exercise their traditional police power authority to regulate aspects of cable service that the Act does not address. That section, entitled “Coordination of Federal, State, and Local Authority,” provides that “[n]othing in [Title VI] shall be construed to affect any authority of any State, political subdivision, or agency thereof, or franchising authority, regarding matters of public health, safety, and welfare, to the extent consistent with the express provisions of this [Title VI].” 47 U.S.C. § 556(a). The 1992 amendments to the 1984 Cable Act (“1992 Cable Amendments”) reaffirmed LFAs’ critical role in regulating various aspects of cable service. In particular, the FCC has read those amendments to confirm Congress’s understanding that LFAs are “better positioned [than the FCC] to evaluate the effects of a proposed transfer” of a cable franchise, and accordingly declined to establish substantive standards for LFA transfer decisions.[11] Congress expressly recognized an LFA’s authority to prohibit the transfer of ownership of a cable system if the LFA determines that “the acquisition . . . may eliminate or reduce competition in the delivery of cable service.” 47 U.S.C. § 533(d)(2). It enacted this provision specifically to overrule a federal district court’s ruling that the 1984 Cable Act authorized only the FCC to disapprove a cable transfer for competitive reasons.[12] In 1996, Congress amended two provisions of Title VI on which AT&T relies. First, Congress provided that “[n]o State or [LFA] may prohibit, condition, or restrict a cable system’s use of any type of subscriber equipment or transmission technology.” yes"> 47 U.S.C. § 624(e). The FCC has recently held that section 544(e) prohibits LFAs only from “dictating the use of transmission technologies.”[13] In those FCC proceedings, TCI has likewise argued that, under section 544(e), LFAs “are simply prohibited from dictating that [cable system] upgrades be completed using any particular equipment or transmission technology.”[14] Second, Congress enacted section 541(b)(3)(D), which provides that an LFA “may not require a cable operator to provide any telecommunications service or facilities . . . as a condition of the initial grant of a franchise,” a “renewal,” or a “transfer.” 47 U.S.C. § 541(b)(3)(D). Congress intended this provision to bar LFAs from requiring cable operators to provide local telephone services to the public, either over existing cable wires or by building new facilities. See H.R. Rep. No. 104-204, at 93 (1995). The FCC and state public utility commissions (“PUCs”) — not LFAs — regulate local telephone services, and Congress sought to preserve that division of responsibility. Id. Cable Modem Service Cable modem service is a new but important form of access to the Internet. A cable modem allows a cable television circuit, rather than a “dial-up” local phone line, to access the Internet through an ISP. Cable modems can handle data transmissions at much higher speeds than conventional phone lines, and are “always on” rather than requiring dialing and occupation of the phone line.[15] AT&T plans to deploy cable modem facilities bundled with “TCI@Home, which provides interactive, multimedia content . . . and permits subscribers to obtain high-speed access to the Internet and the World Wide Web.” Complaint ¶ 6 (AT&T E.R. at 5).[16] AT&T controls TCI@Home (also known as @Home, or, more recently, Excite@Home). See, e.g., id. at 49. AT&T/TCI’s position with respect to high-speed Internet access has been characterized as an effort to impose “[t]he closed-system theology of the cable industry” on “the open-standards religion of the Internet.”[17] Relying on their market power over the delivery of video programming to the home, cable operators “have a history of using ‘closed systems’ to gouge television viewers and to favour channels that they own or that are prepared to pay extortionate ‘bounties,’”[18] as Congress found in enacting the 1992 Cable Amendments. See 47 U.S.C. § 521 note (setting forth congressional findings). In exercising its authority to review the proposed AT&T merger, Portland responded to concerns that the merged entity’s bundling of its franchise monopoly cable facilities with the @Home service would enable it to deny Portland-area subscribers competitive choices among ISPs in the emerging market for high-speed Internet access. As ORISPA explained: [W]ithout th[e] condition, TCI has said it will . . . require consumers to purchase its affiliated ISP, @Home, before they are allowed to purchase the ISP of their choice. Any consumer wanting an ISP other than @Home will have to pay for two services to get the one they want.[19] Dr. John Malone, TCI’s CEO, has put it more graphically: “[Unaffiliated ISPs] need to subscribe to our network to get to their customers at high speed. They have to go through us.”[20] Portland’s Adoption of the Nondiscrimination Condition In August 1998, AT&T and TCI applied to the Mount Hood Cable Regulatory Commission (“MHCRC”), to which Portland had delegated authority, for approval of a proposed transfer of TCI’s Portland-area cable franchises. At the outset of the review process required under the terms of those franchises, MHCRC asked AT&T whether it intended to allow unaffiliated ISPs — in addition to its affiliate, @Home — to obtain access to any future cable modem facilities, and AT&T stated that it would refuse to do so. AT&T Br. at 17-18. Thereafter, a range of interested parties submitted materials to the MHCRC expressing their views on the merits of conditioning the proposed franchise transfers on AT&T’s acceptance of a requirement of nondiscriminatory access to those cable modem facilities. For example, ORISPA explained how the absence of a nondiscriminatory access condition would harm consumers and ISPs other than @Home.[21] Similarly, U S WEST submitted a report that described the dangers of permitting a vertically integrated cable operator and broadband service provider to obtain exclusive control of broadband access to the home. See AT&T E.R. at 57. Other groups, such as the Oregon Consumer League, articulated the need for a nondiscrimination condition to preserve freedom of choice for local Internet users.[22] The MHCRC also held public hearings, at which it took testimony from various ISPs and concerned local consumers, many of whom supported adoption of a nondiscriminatory access requirement. See AT&T E.R. at 50-55, 63-72, 89-95. The City and County held further public hearings, at which interested parties again presented testimony. See id. at 99-115, 117-134. Based on the information provided by these parties, the MHCRC recommended that the City and County adopt a nondiscrimination condition. See id. at 95-98. Each of those LFAs approved the proposed condition, which requires AT&T to provide “nondiscriminatory access to [its] cable modem platform for providers of Internet and on-line services,” provided that AT&T chooses to deploy a cable modem platform and “cable modem services are deemed by law to be ‘cable services.’” AT&T E.R. at 97, 116. AT&T refused to comply with the condition, and Portland denied its consent to the transfer. AT&T and TCI filed this action on January 19, 1999. Despite failing to obtain Portland’s required consent to their proposed transfer, and without seeking preliminary relief from the district court, AT&T acquired control of TCI on March 9, 1999.[23] Proceedings Below Following AT&T’s filing of this action, U S WEST Interprise America, Inc., GTE Internetworking Incorporated, OGC Telecomm Ltd., and ORISPA intervened in support of Portland in the action below. See AT&T E.R. at 223. Defendant-intervenor-appellees moved to dismiss AT&T’s complaint for failure to state a claim. AT&T moved for partial summary judgment, and Portland cross-moved for summary judgment. On June 3, 1999, the district court granted defendant-intervenor-appellees’ motion to dismiss as well as Portland’s summary judgment motion, and denied AT&T’s cross-motion. See id. at 209. The district court was unable to identify any provision in the Act that denied Portland authority to adopt the nondiscrimination condition, and therefore rejected AT&T’s preemption argument. See id. at 200. The court first noted that section 556 of the Act “shows that Congress intended to interfere as little as possible with existing local government authority to regulate cable franchises,” and that “[c]ourts have long recognized a city’s power to promote competition in the local economy.” Id. at 201. The court also held that section 533(d)(2) “specifically recognizes the power of local franchising authorities to preserve competition for cable services.” Id. With respect to section 541(c), which prohibits LFAs (and the FCC) from regulating a cable system as a common carrier or public utility, the court held that Portland did not violate this provision because “[r]equiring that a business allow its competitors access to an essential facility is not the same as regulating that business as a common carrier,” and in any event Portland had not imposed a duty on AT&T to serve the public indifferently (but rather prohibited AT&T from discriminating in favor of @Home vis-a-vis competing ISPs). Id. at 203. The court also rejected AT&T’s argument under section 544(e), which bars LFAs from prohibiting, conditioning, or restricting a cable operator’s use of any particular subscriber equipment or transmission technology, on the ground that Portland did not “condition or limit AT&T’s use of subscriber equipment or transmission technology.” Id. The court concluded that Portland had left AT&T free to use any transmission technology of its choosing in deciding whether and how to deploy a cable modem platform and in complying with the nondiscrimination condition. Id. at 203-04. Next, the court held (in accordance with a unanimous line of federal authority) that a content-neutral access requirement such as Portland’s is consistent with section 544(f), which was intended only to bar regulations that forbid or require the carriage of particular programming content. See id. at 204.[24] The district court held that Portland’s action did not implicate the First Amendment under AT&T’s compelled speech theory, because “[t]he open access requirement is an economic regulation . . . [that] does not force [AT&T] to carry any particular speech.” Id. at 205. It also held that the requirement would be valid even if heightened scrutiny were appropriate. Id. Finally, the court held that the nondiscrimination condition did “not violate the Commerce Clause, . . . because it affects cable service in the Portland metropolitan area only.”[25] SUMMARY OF ARGUMENT Congress has not preempted the action taken by Portland. The Supreme Court has repeatedly recognized that local action must be upheld unless Congress has preempted local authority with unmistakable clarity. See, e.g., Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992); Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-47 (1963)). AT&T does not come close to such a showing. None of the four provisions cited by AT&T evinces an unmistakably clear intent to preempt Portland’s authority to impose a nondiscrimination condition as an exercise of its police power to review cable franchise transfers. Indeed, Congress had not even foreseen the enormous growth of the Internet, much less the provision of Internet access over cable facilities, when it enacted the principal statute at issue, the 1984 Cable Act; and in subsequent amendments to the Act, Congress had altogether different issues in mind. First, AT&T is precluded from arguing that Portland’s condition requires it to provide ISPs with “telecommunications facilities” in violation of section 541(b)(3)(D), because AT&T failed to make that argument below and the district court did not address it. In any event, the condition does not violate section 541(b)(3)(D), which prevents LFAs from encroaching on the authority of the FCC and state PUCs to regulate local telephone services, because the nondiscrimination condition requires AT&T only to provide access to cable facilities (and only if AT&T first chooses to offer cable modem service itself). Second, Portland’s condition does not violate section 544(e). As the FCC has held in interpreting this provision, it bars LFAs only from dictating the use of any particular transmission technology. The nondiscrimination condition does no such thing; it is technology-indifferent. Third, Portland’s condition does not violate section 541(c)’s prohibition against regulating a cable system as a “common carrier or public utility.” Portland has not sought to rely on state public utility law or Title II of the Act to end-run any express limitation on regulation in Title VI. Moreover, the nondiscrimination condition is a targeted competition-preserving measure of the kind that has long been imposed on many firms that are not common carriers. It leaves AT&T free — unlike common carriers subject to Title II — to decide whether to offer cable modem service at all, and to cease offering the service, without Portland’s approval. Fourth, Portland’s condition does not violate section 544(f), which bars only content-based requirements. The condition is triggered not by AT&T’s transmission of any particular message or even broad subject matter, but rather by AT&T’s deployment of a cable modem platform. It is based on the City’s content-neutral assessment of competitive conditions surrounding the provision of high-speed Internet access service. Further undermining AT&T’s preemption argument is the fact that the Act as a whole reflects a longstanding congressional policy to preserve traditional local authority over cable service, except in narrowly circumscribed areas. Congress expressly reaffirmed in sections 556 and 533(d) of the Act that LFAs have authority to adopt access conditions they deem necessary for the protection of competition. The history of cable regulation also reflects Congress’s “reliance on the local franchising process as the primary means of cable television regulation.” H.R. Rep. No. 98-934, at 19. In contrast to these important interpretive aids, AT&T’s policy arguments regarding the wisdom of the nondiscrimination condition — which are without basis in any event — are irrelevant to the preemption analysis.
The Supreme Court has established a “presumption against the pre-emption of state police power regulations.” Cipollone, 505 U.S. at 518. This presumption arises from the fact that “the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.” Gregory, 501 U.S. at 461. As this Court has explained, the presumption has two practical underpinnings: “First, Congress has the power to make preemption clear in the first instance.” Chemical Specialties Mfrs. Ass’n v. Allenby, 958 F.2d 941, 943 (9th Cir. 1992); see also Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 488 (9th Cir. 1984) (“Congress certainly has the power to ‘act so unequivocally as to make it clear that it intends no regulation but its own.’”) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 236 (1947)). “Second, if the court erroneously finds preemption, the State can do nothing about it, while if the court errs in the other direction, Congress can correct the problem.” Chemical Specialties, 958 F.2d at 943.[26] Accordingly, if there is a “plausible argument” that Congress did not intend to preempt state and local authority, this Court refrains from finding preemption. E.P. Paup Co. v. Department of Labor, 999 F.2d 1341, 1348 (9th Cir. 1993). This strong presumption against preemption is a core precept of our system of shared authority. In many areas, from workplace conditions in the Progressive Era to health care delivery problems today, state and local governments have addressed emerging public policy issues before the federal government has chosen to act. As the FCC’s amicus brief makes clear, that is precisely what has happened here. This deference to state and local authority is a strength, not a weakness, of federalism. As Justice Brandeis observed, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory” to address emerging public policy issues. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).[27] In this case, the fact that Portland’s action is consistent with a long tradition in which LFAs have played the primary role in regulating cable service, see H.R. Rep. No. 98-934, at 19, counsels even more strongly against displacing local authority. See Gregory, 501 U.S. at 461; Chevron U.S.A., 726 F.2d at 487-88; City of Dallas v. FCC, 165 F.3d 341, 348 (5th Cir. 1999).
None of the provisions AT&T cites demonstrates an “unmistakably clear” intent to preempt LFA authority. Gregory, 501 U.S. at 460. Indeed, the fact that the FCC — the expert agency charged with implementation of the Act — neither urges reversal of the district court’s judgment nor supports any of AT&T’s four express preemption arguments is a thundering refutation of AT&T’s claim of preemption.[28] If preemption is clear, the expert agency has not discerned it.
Section 541(b)(3)(D) provides that “a franchising authority may not require a cable operator to provide any telecommunications service or facilities . . . as a condition of the initial grant of a franchise, a franchise renewal, or a transfer of a franchise.” 47 U.S.C. § 541(b)(3)(D).[29] AT&T asserts that Portland violated this provision by requiring AT&T “to provide ISPs with ‘telecommunications facilities.’” AT&T Br. at 27 (emphasis added). As a threshold matter, AT&T has forfeited its right to make this argument, because (1) it failed to allege in its complaint or argue in its district court briefs that Portland’s condition requires it to provide “telecommunications facilities,” and (2) it explicitly abandoned the only argument it did make under section 541(b)(3)(D), and thus prompted the district court to ignore that provision. First, AT&T never made any argument below regarding telecommunications facilities, and cannot do so for the first time on appeal. See, e.g., Sofamor Danek Group, Inc. v. Brown, 124 F.3d 1179, 1186 n.4 (9th Cir. 1997); Palmer v. IRS, 116 F.3d 1309, 1313 (9th Cir. 1997). AT&T alleged in its complaint that Portland violated section 541(b)(3)(D) “by attempting to require TCI to provide a common carrier telecommunications service as a condition of a transfer of control of a franchise.” Complaint ¶ 20 (AT&T E.R. at 9) (emphasis added). In its summary judgment memorandum, AT&T simply asserted without elaboration that section 541(b)(3)(D) and other provisions “ensure that local authorities may not evade the preemptive effect of the Cable Act.” Portland Supp. E.R. at 400. And in response to the intervenors’ motion to dismiss, AT&T conceded that section 541(b)(3)(D) prohibits LFAs only “from requiring cable operators to provide telecommunications service” — and agreed with intervenors that it “reflects Congress’s intention that franchising authorities not ‘impinge upon’ the FCC’s authority” over local telephone services. Id. at 300-B n.24. AT&T said nothing further about section 541(b)(3)(D). It is therefore too late for AT&T to assert its “newly minted” theory regarding telecommunications facilities. Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996). Second, AT&T cannot assert any argument under section 541(b)(3)(D), because AT&T abandoned reliance on that provision altogether in its final, post-hearing brief. That brief not only failed to mention section 541(b)(3)(D), but also argued that Portland’s nondiscrimination condition was expressly preempted only by three other provisions of the Act — sections 541(c), 544(e), and 544(f). See Portland Supp. E.R. at 394-B. The district court’s opinion accordingly did not address section 541(b)(3)(D). See Opinion, AT&T E.R. at 195-208. That fact alone precludes AT&T’s reliance on section 541(b)(3)(D) on appeal. See, e.g., Reinkemeyer v. Safeco Ins. Co. of America, 166 F.3d 982, 985 (9th Cir. 1999) (declining to consider argument that “was not reached by the district court and was not fully briefed by the parties”); Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (declining to “consider an issue not passed upon below”). In any event, AT&T’s new argument could not succeed even if it had not been waived, because it ignores the clear intent of the statute. As AT&T conceded below,[30] section 541(b)(3)(D) was enacted to prohibit LFAs from regulating cable operator entry into the local telephone business, which involves the provision of telephone service to the public. See H.R. Rep. No. 104-204, at 93 (1995). The FCC and state PUCs, not local authorities, regulate local telephone services, and Congress sought to preserve that division of responsibility. As the House Report explained:
Id. (emphasis added).[31] The report makes clear that “the force of [subsection (b)(3)(D)] only falls on that portion of the cable operator’s business related to telecommunications services.” Id. at 93-94 (emphasis added).[32] The House Report further stressed that the provision “does not . . . limit the rights of local governments with respect to franchise obligations applying to cable service.” Id. at 93 (emphasis added). Section 541(b)(3)(D) thus has no application here. Portland’s nondiscrimination condition applies only insofar as AT&T chooses to offer cable modem service — which AT&T itself alleges to be a cable service. The condition is thus a “franchise obligation[] applying to cable service,” id., under the allegations of AT&T’s complaint. Congress expressly preserved the authority of LFAs to impose such obligations. By requiring that AT&T make these same cable facilities available to competing ISPs if AT&T chooses to deploy a cable modem platform, Portland clearly did not encroach on federal and state authority to regulate the provision of local telephone services to the public, whether over AT&T’s existing cable wires or over new facilities. Contrary to AT&T’s conclusory assertion that the facilities it must make available under the nondiscrimination condition are “telecommunications facilities,” AT&T at 27, the facilities are “cable facilities.” AT&T itself asserts that Portland’s condition would “require reconfiguration of cable facilities.” Id. (emphasis added). And AT&T does not (and cannot) explain why the use of its cable facilities for transmission purposes would render them “telecommunications facilities” only when the user is an independent ISP — and not when the user is AT&T or @Home. Indeed, the Act’s definition of “cable system” confirms that the facilities in question are “cable facilities” regardless of who uses them. A “cable system” is a “facility . . . that is designed to provide cable service.” 47 U.S.C. § 522(7). AT&T’s schizophrenic interpretation to the contrary cannot serve to extend the preemptive reach of this section beyond the intent of Congress to prevent LFAs from requiring the provision of local telephone service.
AT&T next contends that Portland violated the portion of section 544(e) that prohibits a “state or franchising authority [from] prohibit[ing], condition[ing], or restrict[ing] a cable system’s use of any type of . . . transmission technology.” 47 U.S.C. § 544(e). As the FCC has recently recognized, however, the section’s reference to “transmission technology” refers to the “transmission medium, i.e. microwave, satellite, coaxial cable, twisted pair copper telephone lines, and fiber optic systems, and the specific modulation or communications format, i.e. analog or digital communications.” 1996 Implementation Order, 14 FCC Rcd 5296, 5356 ¶ 141. Thus, section 544(e) means that “local authorities may not control whether a cable operator uses digital or analog transmissions nor determine whether its transmission plant is composed of coaxial cable, fiber optic cable, or microwave radio facilities.” Id. The FCC emphasized the limited scope of this restriction by reaffirming that section 544(e) “does not diminish the LFAs’ important responsibilities in determining local cable-related needs and interests and seeing that those needs are met through the franchising and renewal process.” Id. at 5357 ¶ 142 (emphasis added). The FCC further noted that LFAs may enforce “other facility and equipment requirements” consistently with section 544(e). Id.[33] Portland’s nondiscrimination condition falls within its substantial authority to determine local cable-related needs and interests, and not within the narrow proscription of rules that dictate a cable system’s transmission medium and communications format. The nondiscrimination condition is technology-indifferent. After requesting supplemental briefing on this point, the district court was satisfied by the City’s response that, if AT&T deploys a cable modem platform, it may give ISPs access to its facilities using whatever transmission medium and communications format it chooses. See Opinion, AT&T E.R. at 203-04. Contrary to AT&T’s characterization of this fact as “irrelevant,” AT&T Br. at 31, it is dispositive. As the FCC recognized, section 544(e) merely prohibits LFAs from “dictating the use of transmission technologies.” 1996 Implementation Order, 14 FCC Rcd at 5357 ¶ 142 (emphasis added). As noted above, TCI (now AT&T’s subsidiary) has expressly endorsed this interpretation: It assured the FCC that, under section 544(e), LFAs “are simply prohibited from dictating that [cable system] upgrades be completed using any particular equipment or transmission technology.”[34] Because Portland did not “dictate” how AT&T may comply with the nondiscrimination condition, AT&T’s assertion that it will have to “‘modify its cable network’” to comply with the nondiscrimination condition, AT&T at 30 (citation omitted), is beside the point.[35] Indeed, under AT&T’s view, an LFA could not require AT&T — as permitted under the Act[36] — to expand its service to include unserved areas, because to do so also would require it to “modify its cable network.” The FCC recently rejected TCI’s attempt to establish the same broad reading of section 544(e) that its parent AT&T advocates here. See TCI Cablevision of Oakland County, Inc., 12 FCC Rcd 21396, 21431-32 ¶¶ 84-85 (1997), aff’d on recon., 13 FCC Rcd 16400 (1998). In that proceeding, the city had granted a construction permit for TCI to install fiber optic facilities, but limited TCI’s use of the facilities to the provision of cable television service. Id. at 21431-32 ¶ 84. The FCC ruled that this condition “[wa]s directed at the types of services which may be provided, and the regulatory requirements with which the operator must comply . . . .” Id. Therefore, the condition “neither implicated nor violated” section 544(e). Id. at 21432 ¶ 85. The same is true here. Portland proposed only a lawful “regulatory requirement[]” of nondiscriminatory access that “simply [did] not relate to TCI’s choice and use within its cable system of . . . transmission technology.” Id. at 21432 ¶ 84.
AT&T is no more successful in arguing that Portland’s nondiscriminatory access condition violates section 541(c). That provision states that “[a]ny cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service.” 47 U.S.C. § 541(c). AT&T contends that because telephone and utility common carriers have traditionally been subject to a requirement that they not discriminate among customers, Portland’s imposition of a nondiscrimination obligation vis-a-vis unaffiliated ISPs amounts to “regulation [of AT&T] as a common carrier” in violation of section 541(c). This argument, however, rests on a simplistic and fundamentally flawed understanding of both section 541(c) and the condition that Portland has imposed. First, even if the sort of nondiscrimination condition Portland has imposed on AT&T were comparable to that traditionally imposed on telephone or utility common carriers — which, as shown below, it is not — AT&T is mistaken in arguing that section 541(c) prohibits regulators from imposing on cable systems anything that might be styled a common carrier-like obligation. At the same time that it enacted section 541(c), Congress imposed several requirements on cable operators that could be considered common carrier-like obligations. Section 531 and 532 of the Act, for example, overturned the Supreme Court’s ruling in FCC v. Midwest Video Corp., 440 U.S. 689 (1979) (which had denied the FCC authority to require certain access channels), by permitting LFAs to require cable operators to make channels available for public, educational, or governmental use, see 47 U.S.C. § 531, and by mandating that cable operators make available and lease channels for commercial use by unaffiliated entities. See id. § 532./ Congress also required cable operators to obtain a franchise from the LFA before providing cable service;[38] authorized the FCC to regulate cable rates (although in a different manner from the rate-of-return regulation traditionally applied to common carriers);/ authorized LFAs to impose certain obligations on cable operators not to discriminate among subscribers;[40] and authorized LFAs to require cable operators to make their service available throughout the franchise area.[41] All of these provisions subject cable systems to requirements that are analogous (in varying degrees) to obligations traditionally imposed by Title II (or state law) on telephone or utility common carriers. All, therefore, would be void ab initio under AT&T’s reading of section 541(c), because they require AT&T to “act like a telephone company.” AT&T Br. at 1, 22. Far from being unlawful under section 541(c), however, these common carrier-like obligations were imposed by Congress simultaneously with that provision. AT&T is thus reduced to arguing either (a) that the 1984 Cable Act is entirely self-contradictory (forbidding imposition of common carrier-like obligations while simultaneously imposing such obligations), or (b) that the specific provisions identified above are the exclusive exceptions to the supposed rule against imposition of common carrier-like obligations. The former argument would be disfavored in any context. See, e.g., Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (“we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous”). And it is especially unavailing here, given that AT&T must be able to identify clear and unambiguous statutory provisions to support its preemption claims. See 2A Sutherland Stat. Const. § 46.05, at 104 (5th ed. 1992) (“a ‘clear and unambiguous’ statutory provision generally is one having a meaning that is not contradicted by other language in the same act”). The latter argument is refuted by the fact that Congress did not include in section 541(c)’s prohibition on “regulation of cable systems as common carriers or utilities” the proviso “except as expressly provided in this title”— which Congress did include, for example, in section 544(f)(1), relating to requirements regarding the provision or content of cable services (discussed infra at 41-46). Nor did Congress discern any need to designate sections 531, 532, 541(a), 541(d)-(e), and 543 as “exceptions” to section 541(c). Congress thus viewed all of the Title VI requirements mentioned above as consistent with, and not as exceptions to, section 541(c). Those requirements are indeed consistent with that provision, because they derive from the new statutory regime Congress adopted for cable, and not from the preexisting common carrier regime in Title II (or analogous state law). [42] The legislative history confirms that Congress enacted section 541(c) not to preempt common carrier-like obligations, but to underscore the mutual exclusivity of the regulation of cable service under the new regime set forth in Title VI (or consistent LFA authority), on the one hand, and the regulation of non-cable services under Title II (or state public utility law), on the other. The House Report explained that a cable service would not “be subject to the regulation of rates, terms or conditions, except as provided in Title VI.” H.R. Rep. No. 98-934, at 60 (emphasis added). Conversely, the Report made clear that section 541(c) did not affect the authority of the FCC or a state PUC to regulate a cable operator’s provision of non-cable services under Title II or analogous state law. See id.[43] Section 541(c) thus establishes that federal, state, and local regulators cannot circumvent Title VI’s express limitations by claiming to have additional or overlapping regulatory authority under Title II (or analogous state law) that would allow imposition of regulations that are prohibited by Title VI. Portland did not run afoul of this prohibition on unlawful expansion of non-cable regulatory power. Portland adopted the nondiscrimination provision by a proper exercise of its authority — permissible under Title VI — to approve a transfer of control of a cable franchise.[44] Therefore, Portland has not subjected AT&T’s cable system to “regulation as a common carrier or utility.” Second, even if it were true that section 541(c) barred any common carrier-like local franchise requirement, Portland’s condition is not sufficiently comparable to traditional common carrier regulation as to be prohibited. In Midwest Video, the case principally relied on by AT&T, the Court carefully contrasted the broad carriage requirements it struck down to narrower ones that would be “limited to remedying a specific perceived evil.” 440 U.S. at 707 n.16. As an example of the latter, non-common carrier form of regulation, the Court cited the requirement that cable systems “transmit, upon request, the broadcast signals of [local] broadcast licensees” subject to distant signal importation, id., and other such “less intrusive access regulation,” id. at 705 n.14. That distinction is squarely applicable here. As the district court recognized, the condition was imposed on AT&T not “as a common carrier or utility,” but as a local cable monopoly that has told potential competitors that “[t]hey have to go through us . . . to get to their customers at high speed”[45] — that is, as the owner of an essential facility. As Judge Posner has observed in addressing the essential facilities doctrine, “the antitrust laws are not a price-control statute or public utility or common-carrier rate-regulation statute.” Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, 65 F.3d 1406, 1413 (7th Cir. 1995). Portland’s condition is thus more targeted than the access requirements that Congress imposed in sections 531 and 532 — or the similar requirements struck down in Midwest Video. AT&T must provide access to its cable modem facilities “only to competing ISPs,”[46] and only if AT&T first chooses to deploy a cable modem platform. Like the must-carry requirements of sections 534 and 535, Portland’s condition is a precise remedy, “limited to remedying a specific perceived evil.”[47] It is designed to prevent the owner of a bottleneck facility from excluding competitors.[48] The condition leaves AT&T free — unlike common carriers subject to Title II — to decide whether to offer cable modem service at all, and to cease offering the service once it has begun, without regulatory approval.[49] Far from being a touchstone of common carrier regulation, comparable requirements of nondiscriminatory access to essential facilities have been imposed on many entities that are not common carriers.[50] Portland’s nondiscrimination condition is thus no more a “common carrier” regulation than were identical procompetitive access measures imposed on the Associated Press, see Associated Press v. United States, 326 U.S. 1, 29 (1945) (Frankfurter, J., concurring) (rejecting argument that imposition of access requirement on news service would turn service into a “public utility”), or on ski resorts or sports stadiums. [51] And the condition no more transforms a cable system into a common carrier than the FCC has transformed broadcasters into common carriers (in violation of 47 U.S.C. § 153(10)) by requiring them to make their unique transmission facilities available to their competitors. See 47 C.F.R. § 73.635 (television); id. § 73.239 (FM radio).[52] These FCC broadcasting regulations (and countless others) also refute AT&T’s assertion that access to essential facilities may be required only “after a full adjudication in a court of law.” AT&T Br. at 39. Congress, municipalities, and regulatory agencies may and often do act prophylactically and impose competitive remedies before the owner of a bottleneck facility has succeeded in harming competition irrevocably. See Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 212 (1997) (a legislature “is under no obligation to wait until the entire harm occurs but may act to prevent it”). AT&T cites no authority, and there is none, to suggest that an LFA may not exercise its police power authority to protect consumers from anticompetitive harm in a local cable market in which there is a significant risk of monopolization.
AT&T’s final attempt to demonstrate an “unmistakably clear” intent to preempt involves section 544(f)(1), which provides that “[a]ny Federal agency, State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in [Title VI].” 47 U.S.C. § 544(f)(1). Every court that has construed this provision has agreed with the district court that it limits regulators’ authority only to require or forbid carriage of particular programming content, and does not apply to or limit other types of cable regulation. See United Video, Inc. v. FCC, 890 F.2d 1173, 1188-89 (D.C. Cir. 1989); Storer Cable Communications v. City of Montgomery, 806 F. Supp. 1518, 1545 (M.D. Ala. 1992); Morrison v. Viacom, Inc., 52 Cal. App. 4th 1514, 1531-32, 61 Cal. Rptr. 2d 544, 556 (1997). If Congress had intended to prohibit any requirement that affects the provision or content of cable service — as opposed to requirements that are based on the content of particular programming — it would have nullified sub silentio virtually all cable regulation adopted by LFAs or the FCC. The courts naturally have rejected such a radical interpretation of section 544(f)(1). In United Video, the D.C. Circuit observed at the outset that the phrase “requirements regarding the provision or content of cable services” is ambiguous: It “could be a broad reference to any regulation that would in any way affect the content of cable services,” or, it could refer only to “content that is required, that is, made mandatory.” 890 F.2d at 1188. The court accordingly looked to the legislative history for guidance. The House Report explained that, before enactment of the 1984 Cable Act, LFAs frequently required cable operators to provide particular programming — “e.g., Cable News Network, HBO, The Health Channel.” H.R. Rep. No. 98-934, at 26. “Congress determined that local governments should have the power to require particular cable facilities,” but not “‘to dictate the specific programming to be provided over a cable system.’” United Video, 890 F.2d at 1188 (quoting H.R. Rep. No. 98-934, at 26). The court thus concluded that “when Congress forbade ‘requirements regarding the provision or content of cable services,’ its concern was with rules requiring cable companies to carry particular programming.” Id. [53] The United Video court upheld the FCC’s “syndex” rules, which required cable systems to delete programming imported from more distant television stations. See 47 C.F.R. § 76.151. The court held that it was “plain that Congress did not intend § 544(f) to forbid syndex,” 890 F.2d at 1189, because, even though the syndex rules required cable systems to delete program content, they were “content-neutral” since the “basis” of the regulation was not the content of programs, “but ownership of the right to present them.” Id. The court in Storer Cable agreed with this interpretation of section 544(f)(1) and applied it in circumstances remarkably similar to those here. An LFA had sought to open its previously monopolized cable market to “free and vigorous competition by curtailing . . . anti-competitive abuses employed by cable providers who can leverage their market power.” 806 F. Supp. at 1528. The specific measures taken included a prohibition of discrimination in the provision of video programming. See id. at 1526-27. The district court agreed with the D.C. Circuit that, as evidenced by the House Report, section 544(f)(1) is concerned only “with ‘content-based rules’ which require or forbid cable providers from carrying particular programming.” Id. at 1545. The court therefore upheld the nondiscriminatory access ordinance at issue, because — like Portland’s nondiscriminatory access condition — it was based on “the market effects of the targeted licenses, not on the content of the programming.” Id. at 1546. Even to the extent that the cable operator would be required to license particular programming, the access ordinance did not have “the purpose or effect . . . [of] suppress[ing] [or promoting] a particular message or viewpoint.” Id. Morrison is to the same effect. A cable operator was alleged to have unlawfully restrained trade by tying the sale of certain cable programming to other, more expensive programming. 52 Cal. App. 4th at 1518, 61 Cal. Rptr. 2d at 547. It argued that section 544(f)(1) should be construed broadly to preempt any requirement to unbundle programming. Id. at 1531-32, 61 Cal. Rptr. 2d at 556. The court followed United Video and Storer Cable in holding that the section did not bar the antitrust unbundling claim because the state statute on which the claim was based did not specifically regulate program content. Id. at 1532, 61 Cal. Rptr. 2d at 556-57. AT&T half-heartedly suggests that, contrary to all of these decisions, section 544(f)(1) bars even content-neutral requirements. AT&T Br. at 43-44. As noted above, this interpretation would invalidate almost all FCC and LFA regulation of cable systems. And the fact that each of these decisions rejected AT&T’s interpretation of the Act — and that AT&T cites no contrary authority — obviously precludes a finding that Congress evinced an unmistakably clear intent to preempt content-neutral requirements such as Portland’s nondiscrimination condition. AT&T falls back on the contention that the district court was wrong in finding Portland’s access condition to be content-neutral. See AT&T Br. at 44. That argument, too, is without merit. AT&T did not even allege in its complaint that the access requirement was imposed either to prohibit or to promote particular content. See AT&T E.R. at 1-15. AT&T nevertheless asserts on appeal that Portland has imposed “radically different and burdensome new requirements on [it] by reason of its provision of a cable service that has a particular kind of content.” AT&T Br. at 45. Even apart from the fact that AT&T waived this argument by failing to make it below,[54] Portland’s condition will be triggered if AT&T deploys a cable modem platform, not if AT&T transmits any particular message or even broad subject matter. Portland imposed the condition based on its assessment of competitive conditions surrounding the provision of high-speed Internet access service. The condition applies regardless of the content AT&T carries. As the D.C. Circuit has held, imposition of regulations on firms “because of their status as . . . bottleneck-monopolies” is a far cry from “any effort to exercise a content preference.”[55] Portland’s condition therefore is not preempted by section 544(f).
While the provisions that AT&T invokes fall short in themselves of establishing statutory preemption, two additional factors further doom AT&T’s preemption claim. First, sections 556 and 533(d) of the Act rebut any suggestion that Congress meant the Act to be read broadly to prohibit any access-related requirements not specifically authorized. Second, Congress recognized and confirmed LFAs’ historical role as the primary regulators of cable service, thus indicating that any preemptive reach of the Act should be narrowly construed. AT&T’s policy arguments, far from detracting from this conclusion, are irrelevant to the preemption analysis.
As the district court recognized, section 556 as a whole “shows that Congress intended to interfere as little as possible with existing local government authority to regulate cable franchises.” Opinion, AT&T E.R. at 201. AT&T cites section 556(c), which states that “any provision of law . . . which is inconsistent with this Act shall be deemed to be preempted.” 47 U.S.C. § 556(c). But it ignores subsection (a), which explicitly preserves the established police power “authority of any . . . franchising authority, regarding matters of public health, safety, and welfare, to the extent consistent with the express provisions of [the Act].” Id. § 556(a); cf. Allarcom, 69 F.3d at 387 (rejecting argument for preemption under section 556(c) because other provisions in the Act “expressly preserve state communications law”). Under section 556(a), a state or any LFA (under delegated authority) may “exercise authority over the whole range of cable activities,” including “consumer protection . . . and other franchise-related issues—as long as the exercise of that authority is consistent with Title VI.” H.R. Rep. No. 98-934, at 94 (emphasis added).[56] Thus, contrary to AT&T’s suggestion that LFAs are limited to regulating public rights-of-way under the Act, AT&T Br. at 8, LFAs may exercise their police power authority to regulate any matter that Congress has not fenced off using unmistakably clear language.[57] As the district court likewise concluded, section 533(d) of the Act also “specifically recognizes the power of local franchising authorities to preserve competition for cable services.” Opinion, AT&T E.R. at 201. That provision expressly permits an LFA to prohibit the transfer of ownership of a cable system if the LFA determines that “the acquisition . . . may eliminate or reduce competition in the delivery of cable service.” 47 U.S.C. § 533(d)(2). AT&T objects that section 533(d) “does not exempt competition-preserving measures from the preemptive reach of other provisions of the Communications Act.” AT&T Br. at 48 (emphasis added). But AT&T misses the point. As shown above, because the rest of the Act is silent with respect to the nondiscrimination condition, section 533(d) does not have to “exempt” the condition from anything. Rather, the significance of section 533(d) is that, where there is an interpretive choice involved in reading the sections relied on by AT&T, section 533(d) supports an interpretation that preserves LFA authority. Congress reaffirmed in section 533(d) that LFAs have broad authority to protect competition in the delivery of cable service in the specific context relevant here — the review of a proposed transfer. Moreover, the fact that Congress amended the Act specifically to overrule Cable Alabama Corp. v. City of Huntsville, 768 F. Supp. 1484 (N.D. Ala. 1991), and to make clear that LFAs do have authority to block franchise transfers for competitive reasons, speaks volumes about Congress’s understanding of LFAs’ role in the regulatory process. That amendment would have made no sense if Congress thought some other provision of the Act already precluded an LFA from exercising such authority.[58]
AT&T’s preemption argument also ignores Congress’s intention to preserve LFAs’ primary role in regulating cable service, including their responsibility for reviewing the potential anticompetitive effects of franchise transfers. For example, AT&T cites the Supreme Court’s pre-1984 Cable Act observation that LFAs are permitted to grant franchises and oversee “such local incidents of cable operations as delineating franchise areas, regulating the construction of cable facilities, and maintaining rights of way.” AT&T at 7 (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 702 (1984)). AT&T leaps from this dictum and Congress’s express preemption of LFA authority in a few narrow areas to the conclusion that “local franchising bodies retain authority only over uses of public rights-of-way and related aspects of cable service.” Id. at 8 (emphasis added). AT&T turns the history upside-down. The limiting inference that AT&T seeks to draw from the Crisp enumeration flies in the face of the Supreme Court’s recognition in City of New York v. FCC that, before the 1984 Cable Act, LFAs had regulated “many aspects of cable services, facilities, and equipment.” 486 U.S. at 67 (emphasis added).[59] Congress confirmed that broad role in the 1984 Cable Act, which allows LFAs to continue to “regulate ‘services, facilities, and equipment’ in certain respects, and [to] enforce those requirements.” Id. And the FCC confirmed after enactment of the 1992 Cable Amendments that LFAs remain “better positioned [than the FCC] to evaluate the effects of a proposed transfer” of a cable franchise, and also declined to articulate substantive standards for LFA review of cable transfers.[60] LFAs accordingly continue to bear primary responsibility for achieving the congressional objective of “assur[ing] that cable systems are responsive to the needs and interests of the local community.” 47 U.S.C. § 521(2).[61] Portland properly fulfilled that traditional responsibility by requiring nondiscriminatory access to AT&T’s cable modem facilities. Accordingly, preemption of Portland’s police power authority would be particularly disfavored. See supra at 21.
As the district court observed (Opinion, AT&T E.R. at 202), the only issue raised by AT&T’s preemption argument is whether any provision of the Act clearly and unmistakably preempts Portland’s authority to adopt the nondiscrimination condition. AT&T’s view of the wisdom of Portland’s action is beside the point. It is therefore unavailing for AT&T to argue now that there is no “conceivable basis for a finding that TCI’s Portland system (which does not yet offer TCI@Home) is an essential facility,” AT&T Br. at 40, or that “Portland did not and could not make findings that forced access requirements promote competition.” Id. at 47. Had AT&T wished to challenge the substantive merits of Portland’s nondiscrimination condition, as opposed to Portland’s power to act, AT&T should have done so in its complaint. But it did not. It is also irrelevant whether Portland and other LFAs are in as good a position as the FCC to craft a comprehensive resolution of the “open access” issue.[62] The FCC concedes that it has not attempted to exercise its asserted regulatory authority to preempt local action. See, e.g., FCC Br. at 28 (asserting that it “would have authority to preempt local regulation of [cable] service to the extent such regulation conflicted with a permissible federal policy,” and asking Court to “recognize[] the possibility of agency preemption” in the future) (emphasis added).[63] Unless and until it does so, Portland and other LFAs remain free to fashion their own responses to the particular competitive situations in their local markets. Nor is there any genuine threat that disparate policies established by a supposed “30,000 local franchising authorities”[64] will somehow undermine cable operators’ ability to compete. AT&T and its supporting amici never explain why complying with a nondiscriminatory access requirement in one franchise area, but not in others, would be “chaotic” for cable operators. AT&T Br. at 26. Individual franchise agreements already subject cable operators to differing requirements “for facilities and equipment” and for “broad categories of video programming or other services,” 47 U.S.C. § 544(b), including those involving public, educational, and governmental-use channels and institutional networks, id. § 531. That is the nature of the decentralized regulatory regime adopted by Congress. Indeed, as shown above, it was Congress’s deliberate design that, except in those narrow areas where the Act expressly preempts LFA action, LFAs would play the primary role in regulating cable services because they are most familiar with “the needs and interests of the local community.” See 47 U.S.C. § 521(2). Nevertheless, if AT&T and other cable operators so desire, they may attempt to persuade the FCC that there is a need for federal agency action to preempt local authorities from requiring nondiscriminatory access to bottleneck cable modem facilities. See FCC Br. at 27-28 (describing possibility of agency preemption).[65] So, too, could Congress amend the statute to establish a federal policy prohibiting LFAs from adopting nondiscrimination requirements. As this Court has recognized, the federal government’s retention of this “ultimate power” is a principal basis for the strong presumption against construing a statute to preempt local authority. Chevron U.S.A., 726 F.2d at 488. For these reasons, and for those stated in the briefs of Portland and ORISPA, the Court should affirm the district court’s judgment. Respectfully submitted, ____________________
STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, attorneys for
defendant-intervenor-appellees attest that they are not aware of any related
cases pending in this Court. CERTIFICATE OF SERVICE I, Matthew A. Brill, hereby certify that on the 7th day of September, 1999, I
caused true and correct copies of the foregoing Opposition Brief of
Defendant-Intervenor-Appellees U S WEST Interprise America, Inc., GTE
Internetworking Incorporated, and OGC Telecomm, Ltd. to be served by overnight
mail on the parties listed below. Matthew A. Brill David W. Carpenter Mark C. Rosenblum Daniel M. Waggoner Terence L. Thatcher Gerald Itkin Joe Van Eaton Bruce J. Ennis [1] Reply Comments of AT&T Corp. at 69, June 10, 1999, in Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, Second Further Notice of Proposed Rulemaking, CC Docket No. 96-98, FCC 99-70 (rel. Apr. 16, 1999) (emphasis added) (quoting Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992) and Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-47 (1963)). [2] The Act uses different section numbers than the United States Code. For the Court’s convenience, this brief refers to each statutory provision by its section number in Title 47 of the United States Code. [3] See 47 U.S.C. § 301; Allen B. Dumont Labs., Inc. v. Carroll, 184 F.2d 153 (3d Cir. 1950). [4] D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video ¶ 3.01, at 3-3 (1996); see also Total TV v. Palmer Communications, Inc., 69 F.3d 298 (9th Cir. 1995) (Congress did not occupy the field of cable regulation so as to preclude state and local regulation); Time-Warner Entertainment Co. v. FCC, 56 F.3d 151, 194 (D.C. Cir. 1995) (same). [5] Cable Television Report and Order, 36 FCC2d 143, 207 (1972). [6] Cable Television Ass’n of New York, Inc. v. Finneran, 954 F.2d 91, 95 (2d. Cir. 1992) (emphasis added). [7] See United States v. Southwestern Cable Co., 392 U.S. 157, 177 (1968). [8] Distribution of Television Broadcast Signals by Community Antenna Television Systems, Notice of Inquiry and Notice of Proposed Rulemaking, 1 FCC 2d 453, 466 (1965). [9] Cable Television Report and Order, 36 FCC2d at 207. [10] See, e.g., 47 U.S.C. § 544(b)(1) (an LFA “may establish requirements for facilities and equipment”). [11] Implementation of Sections 11 and 13 of the Cable Television Consumer Protection and Competition Act of 1992, Report and Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd 6828, 6833 ¶ 36 (1993). [12] See H.R. Rep. No. 102-628, at 91 (1992), citing Cable Alabama Corp. v. City of Huntsville, 768 F. Supp. 1484, 1499 (N.D. Ala. 1991). [13] Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996, Report and Order, 14 FCC Rcd 5296, 5357 ¶ 142 (1999) (“1996 Implementation Order”) (emphasis added). [14] Comments of Tele-Communications, Inc. at 28, June 4, 1996, in Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996, Order and Notice of Proposed Rulemaking, 11 FCC Rcd 5937 (1996) (emphasis added) (attached as Exhibit A). [15] Inquiry Concerning the Deployment of Advanced Telecommunications Capability, Report, 14 FCC Rcd 2398, 2426, ¶ 54 & n.116 (1999). [16] AT&T has alleged that its proposed cable modem service is a “cable service” within the meaning of the Communications Act of 1934, as amended (“the Act”). See Complaint ¶¶ 6, 18 (AT&T E.R. at 5, 8). And the Portland ordinance challenged in the complaint applies only if cable modem service so qualifies. See AT&T E.R. at 116. Defendant-intervenor-appellees did not challenge AT&T’s allegation below; instead, they merely assumed its truth arguendo and moved to dismiss AT&T’s complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). yes"> Thus, as the FCC suggests, the narrow issue on appeal is whether, if cable modem service is a “cable service” under the Act, Congress intended to preempt Portland’s authority to impose a nondiscriminatory access requirement. [17] Broadband Bottleneck, The Economist, Nov. 7, 1998, at 66. [18] Id. [19] See Portland Supp. E.R. at 345. [20] Ken Auletta, How the A.T.&T. Deal Will Help John Malone Get Into Your House, The New Yorker, July 13, 1998, at 13 (emphasis added). [21] See Portland Supp. E.R. at 345-47. [22] See id. at 211. [23] See <www.att.com/press/item/0,1193,382,00.html>. [24] The court also held that Portland did not violate sections 531, 532, 534, or 535, each of which imposes an access requirement on cable operators with respect to video programming, because those provisions are irrelevant to the question whether an LFA may adopt an access requirement with respect to broadband Internet access. See Opinion, AT&T E.R. at 205. [25] The court also dismissed AT&T’s claims under the Contract Clause and the franchise agreement, which AT&T has dropped on this appeal. [26] See also Chevron U.S.A., 726 F.2d at 488 (“if [the court] is left with a doubt as to congressional purpose, [it] should be slow to find preemption, ‘[f]or the state is powerless to remove the ill effects of [the court’s] decision, while the national government, which has the ultimate power, remains free to remove the burden.’”) (quoting Penn Dairies v. Milk Control Comm’n, 318 U.S. 261, 275 (1943)); see also Beveridge v. Lewis, 939 F.2d 859, 863 (9th Cir. 1991); Agency Rent-A-Car, Inc. v. Connolly, 686 F.2d 1029, 1038 (1st Cir. 1982). [27] See also New York Tel. Co. v. New York State Dep’t of Labor, 566 F.2d 388, 393 (2d Cir. 1977) (citing this principle in rejecting assertion of federal preemption of state law), aff’d, 440 U.S. 519 (1979). [28] The FCC’s amicus brief asks the Court to avoid an inadvertently broad holding that would (1) unnecessarily resolve the question whether cable modem service is a cable service, as AT&T alleged in its complaint; or (2) suggest that the FCC lacks authority later to preempt LFA authority as a matter of agency preemption. See FCC Br. at 19-30. The narrow issue posed by the district court’s judgment dismissing AT&T’s complaint — whether, if cable modem service is a “cable service,” any provision of the Act unmistakably preempts Portland’s action — does not implicate either of these questions. [29] Contrary to AT&T’s brief (at 8), section 541(b)(3)(D) does not bar “any condition with the ‘purpose or effect’ of requiring . . . a cable system’s provision of a telecommunications facility to third parties.” A different provision, section 541(b)(3)(B) — which is not at issue in this case — bars an LFA from “impos[ing] any requirement . . . that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator.” Id. § 541(b)(3)(B) (emphasis added). The ban in subsection (b)(3)(D) on requiring the provision of telecommunications service or facilities is much narrower than the ban on limiting it. In any event, as shown below, Portland’s nondiscrimination condition does not have the “purpose or effect” of requiring AT&T to provide telecommunications facilities. [30] See Portland Supp. E.R. at 300-B n.24. [31] The Act defines “telecommunications service” as the offering “of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public . . . .” 47 U.S.C. § 153(46). It similarly defines “telephone exchange service” as a service “furnish[ed] to subscribers.” Id. § 153(47). [32] See also H.R. Conf. Rep. No. 104-458, at 179-180 (titling relevant section of Conference Report “Preemption of Franchising Authority Regulation of Telecommunications Services”) (emphasis added). [33] AT&T thus engages in wishful thinking in asserting that the 1996 Implementation Order ruled that section 544(e) “has been amended categorically to prohibit any local regulation ‘in the area’ of ‘transmission technologies.’” AT&T Br. at 30 n.34 (quoting 1996 Implementation Order, ¶ 141). Contrary to AT&T’s citation, paragraph 141 of the Order does not include the phrase “in the area.” See also AT&T Br. at 29 (same erroneous citation at bottom of page). As shown in the text, the Order concludes that section 544(e) does not expressly preempt LFAs’ broad authority to adopt facilities-related requirements that do not dictate the use of particular transmission technologies. [34] See Exhibit A (TCI Comments at 28 (emphasis added)). TCI further explained its view as follows: Rather than categorically prohibiting LFAs from requiring facilities upgrades, Congress intended to preempt technology-specific requirements such as “(1) channel capacity requirements of a specific MHz level; (2) requirements as to the number of optical fibers a cable operator must deploy; (3) the number of homes each fiber optic node may serve; (4) the number of amplifiers in each cascade; and (5) the amount of stand-by power at the headend.” Id. (TCI Comments at 29). [35] In any event, there is no record support for AT&T’s assertion that any modification to its network in Portland would be necessary. While AT&T relies on generalities about the design of broadband networks from an affidavit prepared by GTE, AT&T Br. at 30 & n.35, its own complaint makes clear that TCI has not yet determined whether to introduce cable modem service in the Portland area. See Complaint ¶ 6 (AT&T E.R. at 5). Any cable modem facilities deployed there will be new. [36] See 47 U.S.C. §§ 541(a)(3), (a)(4)(A). [37] AT&T again overstates the Act’s preemptive effect in asserting that “Congress prohibited the adoption of carriage requirements for any additional types of video programming” in section 532(b)(2). AT&T Br. at 32 (emphasis added). The provision merely prohibits regulators from dedicating more channel capacity for leased access under section 532(b)(1) than the 10-15% permitted by that subsection. It has no effect outside the context of the leased access provision — and certainly no effect on the question of congressional intent with respect to cable modem access, which does not entail “video programming” at all, see 47 U.S.C. §§ 522(20), 532(b)(5). [38] See 47 U.S.C. § 541(b). Compare id. § 214 (requiring certificate of public convenience and necessity for the provision of common carrier service). [39] Compare 47 U.S.C. § 543 with id. §§ 203-205. [40] See 47 U.S.C. § 543(d)-(e). Compare id. § 202 (prohibiting discrimination and preferences by common carriers). [41] See 47 U.S.C. § 541(a)(3); id. § 541(a)(4)(A). Compare id. § 254 (prescribing regime for universal provision of local telephone service). [42] See, e.g., Or. Rev. Stat. § 756.010 et seq. (setting forth regulatory scheme for public utilities) [43] Moreover, Congress called section 541(c) “Status of cable system as common carrier or utility,” Pub. L. No. 98-549, 98 Stat. at 2786, further indicating that the provision was intended to prevent the imposition of common carrier status on a cable operator through regulation under Title II (or analogous state law). See Almendarez-Torres v. United States, 118 S. Ct. 1219, 1226 (1998) (“the title of a statute and the heading of a section are tools available for the resolution of doubt about the meaning of a statute”) (internal quotation marks and citation omitted). [44] See 47 U.S.C. § 556(a) (LFAs may exercise their traditional police power authority consistent with the express provisions of Title VI); id. § 533(d)(2) (an LFA may prohibit the transfer a cable franchise if it determines that “the acquisition . . . may eliminate or reduce competition in the delivery of cable service”); id. § 544(b)(1) (an LFA “may establish requirements for facilities and equipment”); id.§ 521(2) (policy of the Act is to assure, through the franchise process, that “cable systems are responsive to the needs and interests of the local community”). [45] See supra at 12. [46] Opinion, AT&T E.R. at 203. [47] Midwest Video, 440 U.S. at 707 n.16. [48] Indeed, this is the basis Congress relied on in imposing “must carry” requirements to protect video competition between cable operators and local broadcasters. See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 661 (1994). [49] Compare 47 U.S.C. § 214 (common carrier may not commence service, extend a line, or cease providing service without FCC determination of public convenience and necessity); id. § 201(a) (common carrier has duty to provide service upon reasonable request). AT&T’s speculation (AT&T Br. at 42) that Portland’s nondiscrimination condition could lead to more intrusive regulation is unavailing. The condition Portland adopted simply requires AT&T to treat unaffiliated ISPs the same as @Home. If Portland were to attempt to adopt a different regime, such as one that imposes rate-of-return regulation, the lawfulness of that regime could be determined in an appropriate case. [50] Moreover, nondiscriminatory access requirements have not been imposed on many telephone companies that are common carriers. For example, the FCC’s “unbundling” and “equal access” requirements under the Computer III rules (cited by AT&T Br. at 40) have been applied only to the Bell operating companies, and only because of the FCC’s assessment of their “market power.” See California v. FCC, 905 F.2d 1217, 1225 (9th Cir. 1990). [51] Fishman v. Estate of Wirtz, 807 F.2d 520 (7th Cir. 1986) (sports facility); Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509 (10th Cir. 1984) (joint marketing arrangement among ski facilities), aff’d on other grounds sub nom. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985); Hecht v. Pro-Football, Inc., 570 F.2d 982 (D.C. Cir. 1977) (sports facilities); Gamco, Inc. v. Providence Fruit & Produce Bldg., Inc., 194 F.2d 484 (1st Cir. 1952) (warehouse facility). [52] While Portland’s access condition is analogous to the essential facilities-based access obligation imposed on the very narrow class of “incumbent local exchange carriers” in section 251(c) of the Act, Congress located that section in a new Part II of Title II called “Development of Competitive Markets.” Pub. L. No. 104-104, 110 Stat. 56, 61 (1996). Significantly, Part I of Title II — which requires all telephone companies to provide service upon reasonable request, 47 U.S.C. § 201(a), to file tariffs, id. § 203, and to obtain permission to commence or cease providing service, id. § 214 — is the only part of that title that Congress viewed as “Common Carrier Regulation.” Id., 110 Stat. at 79. See Almendarez-Torres, 118 S. Ct. at 1226 (noting importance of statutory titles and headings). [53] AT&T seeks to read much into the United Video court’s observation, based on the House Report, that “Congress thought a cable company’s owners, not government officials, should decide what sorts of programming the company would provide.” AT&T Br. at 43 (quoting United Video, 890 F.2d at 1189). AT&T ignores the sentences that follow: The House Report “does not suggest a concern with regulations of cable that are not based on the content of cable programming, and do not require that particular programs or types of programs be provided. Such regulations are not requirements ‘regarding the provision or content’ of cable services.” 890 F.2d at 1189 (emphasis added). [54] See supra at 23-24 (citing cases for the proposition that argument cannot be asserted for the first time on appeal). [55] BellSouth Corp. v. FCC, 144 F.3d 58, 69 (D.C. Cir. 1998) (rejecting First Amendment challenge to regulation of electronic publishing to protect nonaffiliated providers), cert. denied, 119 S. Ct. 1495 (1999). [56] Section 532(d)(1) of the Act also confirms LFAs’ authority to “enac[t] or enforc[e] any consumer protection law, to the extent not specifically preempted by this title.” 47 U.S.C. § 552(d)(1). LFAs’ authority to adopt consumer protection measures has been deemed “concurrent with the Commission’s jurisdiction.” Time-Warner Entertainment Co. v. FCC, 56 F.3d 151, 193 (D.C. Cir. 1995). As noted above, Portland’s condition was imposed to protect consumers from what the Oregon Consumer League and others testified was an emerging threat to consumer choice of ISPs. [57] This Court has adopted this view of the Act’s preemption scheme. See Allarcom, 69 F.3d at 386-87; Total TV v. Palmer Communications, Inc., 69 F.3d 298, 302-04 (9th Cir. 1995). Other courts agree. See, e.g., Storer Cable Communications v. City of Montgomery, 806 F. Supp. 1518, 1542-48 (M.D. Ala. 1992) (declining to find preemption in absence of clear evidence of intent to foreclose LFA regulation); cf. Texas Office of Pub. Util. Counsel v. FCC, No. 97-60421, 1999 U.S.App. LEXIS 17941, at *41 & n.32 (5th Cir. July 30, 1999) (allowing states to impose additional eligibility requirements (beyond those established by the FCC) for telephone carriers to receive universal service support “in light of the states’ historical role” and the absence of any provision in the Communications Act that expressly preempts state action). [58] AT&T also misses the mark in asserting that it is “beyond dispute that competition in the delivery of cable service in Portland will be unaffected by AT&T’s acquisition of TCI.” AT&T Br. at 48. AT&T overlooks the significance of its allegation that Internet access provided via cable modem facilities is a cable service. If AT&T could exercise bottleneck control over the delivery of such cable service, as Portland feared, then competition in that market would indeed be impaired by discrimination against ISPs competing for cable subscribers over AT&T’s cable modem platform. AT&T appears to be suggesting that, since TCI has not rolled out cable modem service, the transfer to AT&T could not “reduce competition,” because there was none in the first place. But AT&T would “reduce competition” by precluding its very development, just as it would if it were to squelch existing competition. And consolidation between existing cable systems in a jurisdiction was not the only concern of section 533. Compare 47 U.S.C. § 533(d)(1) with id. § 533(d)(2). Likewise, AT&T’s assertion that its acquisition of TCI would not be responsible for any competitive harm in Portland, because TCI would have rolled out @Home anyway (AT&T at 48-49), is misplaced. Portland obviously concluded that TCI’s merger with AT&T was significant — indeed, AT&T and TCI themselves told the FCC that the infusion of AT&T’s capital would boost deployment of @Home, making it a more dominant competitor, Application for Authority To Transfer Control, CS Docket No. 98-178 (Sept. 14, 1998) — and the “correctness” of Portland’s judgment is not relevant to AT&T’s allegations in this case. [59] This broad traditional role of LFAs is commonly recognized. D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video ¶ 3.01, at 3-3 (1996). The Crisp Court’s reference to “exclusive” FCC jurisdiction, AT&T at 7, simply characterized the FCC’s own view of its authority under pre-1984 law — authority that extended only to regulation of cable that was reasonably ancillary to the FCC’s exclusive authority over broadcasting. See Midwest Video Corp., 440 U.S. at 697. [60] Implementation of Sections 11 and 13 of the Cable Television Consumer Protection and Competition Act of 1992, Report and Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd 6828, 6833 ¶ 36 (1993). [61] Notably, in the related context of franchise renewals, the Act reaffirms that LFAs should consider whether a cable operator’s proposed service “is reasonable to meet the future cable-related community needs and interests . . . .” 47 U.S.C. § 546(c)(1)(D). [62] See, e.g., NCTA Br. at 23 (arguing without foundation that “[c]ities lack [the] resources and expertise” to be effective policymakers). [63] As the FCC and AT&T recognize in declining to argue agency preemption, a federal agency’s statements of policy in the absence of notice-and-comment rulemaking are incapable of preempting local authority. See Southern Pac. Transp. Co. v. Pub. Utils. Comm’n, 647 F. Supp. 1220, 1225-26 (N.D. Cal. 1986), aff’d, 820 F.2d 1111 (9th Cir. 1987) (per curiam); see also Agency Rent-A-Car, 686 F.2d at 1038 (potential “conflict with federal policy” insufficient to warrant preemption). [64] NCTA Br. at 23. [65] Indeed, the FCC notes that AT&T’s failure to initiate such an FCC proceeding “has put this Court in an awkward position.” FCC Br. at 17. By affirming the judgment below, the Court will leave the FCC free to decide, subject to judicial review in the courts of appeals, whether federal preemption is appropriate (and warranted under the statute). | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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