Open Access Proponents File Amicus Briefs in the Portland Cable Case

(September 15, 1999) Several entities which support open access to broadband cable Internet facilities filed friend of the court briefs with the U.S. Court of Appeals for the Ninth Circuit on Tuesday, September 14. A brief filed on behalf of several consumer groups argued that free speech interests would be furthered by Portland's open access decision.

The main issue in the case, AT&T v. Portland, is whether the City of Portland and other local governments can impose conditions on providers of broadband cable Internet access. Portland and the surrounding Multnomah County decided in January that AT&T must open its cable facilities to competing Internet Service Providers (ISPs). Portland argues that "open access" furthers competition.

AT&T, which is spending billions of dollars to acquire cable companies and upgrade their facilities to provide Internet access, does not want to give its competitors a free ride. So, AT&T filed suit in federal court. The District Court issued its Opinion in June, upholding Portland's decision. AT&T appealed to the Ninth Circuit Court of Appeals. AT&T argues that "forced access" inhibits investment in the development of new facilities, and is beyond the legal authority of local governments.

The Federal Communications Commission declined to impose an open access (or forced access) requirement when it reviewed the AT&T TCI merger. FCC Chairman William Kennard has spoken frequently and forcefully against open access. The FCC filed an amicus brief which criticized the District Court decision, but stopped short of asking for reversal.

At least three amicus briefs were filed on Tuesday, September 14, by the following:

• Consumer groups: Citizens’ Utility Board of Oregon, Consumer Action, Consumer Federation of America, The Utility Reform Network (TURN), and Utility Consumers’ Action Network.
• Local franchising authorities: U.S. Conference of Mayors, the National Association of Counties, The National League of Cities, the National Association of Telecommunications Officers and Administrators, Jefferson County, King County, the Montgomery County Council, the Michigan Coalition to Protect Public Rights of Way from Telecommunications Encroachments, the Sacramento Metropolitan Cable Television Commission, the San Mateo County Telecommunications Authority, the Bell-Cudahy Cable Television Authority, and The Cities of Arvada, Atlanta, Baltimore, Boston, Dearborn, Los Angeles, New York, Rancho Palos Verdes, San Diego, San Francisco, San Jose and Walnut Creek.
• OpenNet Coalition: an Internet Service Provider group which includes AOL.

In addition, AT&T, which filed its original appeal brief on August  9, filed a reply brief yesterday.

One amicus brief was filed by a collection of consumer groups that often take part in utility regulatory proceedings. This brief was filed on behalf of the Citizens’ Utility Board of Oregon, Consumer Action, Consumer Federation of America, The Utility Reform Network (TURN), and Utility Consumers’ Action Network. Bruce Wecker, of the San Francisco law firm of Furth, Fahrner & Mason, was the lead attorney on the brief.

This brief contains an emphasis not found in other briefs filed in this case. It argues that freedom of speech and unfettered Internet communications would be furthered by the City of Portland's open access requirement.

The introduction states that "the closed access model of AT&T does not promote free speech, but rather has the ability to significantly dampen the Internet’s potential for unfettered communications. Absent open access, AT&T would likely be able to force consumers to accept its closed system. Consumer Amici demonstrate that the broadband Internet access market is not likely to be effectively competitive and that consumer interests in free speech and choice would suffer if local governments were deprived of the power to mandate open access."

The brief then goes into a discussion of the technologies involved in the AT&T cable system, and its affiliated @Home Internet service.

"Despite AT&T’s assurances of “one click” pass-through, users of the @Home service cannot speak or receive information with the same quality of service if they attempt to communicate with providers who have not contracted to become one of @Home’s “preferred” providers. A user connecting through the @Home server may be able to connect with any location on the Internet, but not at the same speed.  The user can opt to have another provider’s “home page,” but it will download significantly more slowly and embedded hypertext links will not appear as quickly as “preferred” content on the @Home “home page.” Absent open access, subscribers will have no means to avoid this discrimination against disfavored content."

The brief elaborates that a closed system, such as AT&T's, "permits cable operators to favor their “partners” subtly, without actually having to block competitors’ offerings."

AT&T can used practices such as "bandwidth management techniques" and the local caching of preferred content. The brief asserts that AT&T can exercise "nearly undetectable content control."

The Open Net Brief

The Open Net Coalition held a telephone press conference on Tuesday morning, September 14, to announce that it would file an amicus curiae brief later in the day. Lloyd Cutler The event featured some of the highest paid lobbyists, spin meisters, and power brokers in Washington. David Kendall (Clinton's impeachment lawyer), Lloyd Cutler (a former Counsel to President Clinton), and Bruce Ennis, were among the many participants. While David Kendall summarized the brief, and OpenNet distributed written summaries, they did not make a copy of the OpenNet brief available. Tech Law Journal has repeatedly requested, but not received, a copy of the brief. Tech Law Journal does not write about legal briefs without reading the briefs.

The brief also argues that closed access systems, such as AT&T's, "deny parents’ choice to use 'server-based' filtering, a technology which may prove to be the most effective mechanism to control what material is available to their children on the Internet. Development of such devices can promote free speech by protecting children while permitting the Internet to provide un­filtered access for those who wish to receive constitutionally protected material that is offensive to others." (Footnotes omitted.)

However, another consumer oriented group has taken the opposite position. netaction is non-profit organization dedicated to educating the public, policymakers, and the media about technology-based social and political issues. It has been active in condemning Microsoft for its alleged anti-competitive practices. It released a white paper on September 12 opposing open access.

Another amicus curiae brief was prepared by Jayne Lee of the City of San Francisco, on behalf of San Francisco, the National League of Cities, the National Association of Counties, the U.S. Conference of Mayors, NATOA, King County, and other entities.