Despite vows, the cable war goes on

Even though the biggest operators pledge to permit rival ISPs open access, battles rage in legislatures and courts

Paige Albiniak -- Broadcasting & Cable, 5/8/2000

Fights over whether local, state and federal governments should compel cable companies to open their high-speed networks to competitive Internet service providers (ISPs) still are going on nationwide, even though the country's largest cable operators say they plan to eventually permit access.

With or without legislation, both sides of the debate are claiming victory. Supporters of "open access"-particularly GTE, SBC and the OpenNet Coalition-say they have been successful in making the issue a national topic within one year, getting it in front of 20 state legislatures, and forcing big cable companies to agree to open their forthcoming broadband networks.

Opponents-such as NCTA, NetCompete Now and MSOs-say the push for "forced access" has been an utter defeat because only a few pieces of legislation have passed and most license transfers have cleared regulatory scrutiny without any new access provisions.

"To me, the big story is how after a big push from OpenNet, it's really been a stunning rout," said Richard Cimerman, director of state telecommunications policy for NCTA, who has been following the open-access fights state by state. "They haven't even gotten a bill out of committee."

Meanwhile, open-access proponents say education efforts have been effective. In trying to persuade regulators to approve both AT & T's purchase of Media One and America Online's of Time Warner, the big cable companies have said they will open their networks as soon as possible. The No. 4, 5 and 7 MSOs-Cox, Comcast and Cablevision-have had to follow suit.

If cable companies keep their promises, most regulators see no need to step in.

But open-access proponents point to last week's retransmission battle between Time Warner and Disney as an omen of things to come in a deregulated world.

"We've already had some evidence of how the cable companies are treating the networks," said Briana Gowing, spokeswoman for GTE Corp.

That said, the issue is not entirely dead. State legislatures in Ohio and Michigan continue to consider open-access initiatives, with most watching Michigan intensely. "It's not clear that the [Ohio] legislature has a lot of stomach to do something that 14 other states already have said no to," Cimerman said.

Action was delayed last week on the Michigan bill while the legislature works on a deregulatory bill that would rewrite Michigan's overall communications act.

Since last year, California, Florida, Kansas, Idaho, Iowa, Maryland, Minnesota, New Hampshire, New Mexico, Oregon, Pennsylvania, Rhode Island, Texas and Utah have considered open-access legislation and all have ultimately rejected it, either by actively voting against it or by tabling legislation.

Legislation is live but not moving in Delaware, Illinois and Vermont. Massachusetts is considering a ballot initiative, but open-access proponents need another 10,000 signatures before they can get the measure on the November ballot.

What may close the issue once and for all is a decision from the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which is due any day.

After AT & T Corp. announced its purchase of Tele-Communications Inc., the city of Portland, Ore., decided AT & T would have to agree to open the networks of its Portland cable provider in order to win approval from the city to transfer its cable license from TCI to AT & T. The city of Portland considered high-speed service offered over AT & T's cable lines a cable service, giving it authority to regulate AT & T.

AT & T argued that the law considers its networks telecommunications services, which puts the company out of the purview of the Portland cable authority. The U.S. District Court disagreed, and AT & T appealed to the Ninth Circuit.

The open-access initiative has been somewhat successful in several cities.

Late last month, Los Angeles' Board of Information Technology Commissioners approved transfer of Time Warner's cable system to America Online Inc. but insisted that AOL live up to promises it made to federal regulators in March with regard to open access.

San Francisco's board of supervisors last month introduced legislation that would give area cable operators 18 months to provide open access.

And new legislation in St. Louis would require the next cable franchise up for renewal to provide open access. St. Louis is negotiating with AT & T, which owns the franchise there but is trying to transfer its system to Charter Communications. The city, meanwhile, is having informal talks with Charter.