noted the existence of a serious dispute concerning the proper classification of cable-modem service," the aside says, "although it has not yet resolved the issue." Finally, the FCC suggests that, given the rapidly evolving technologies involved, "the court should proceed with caution when it resolves this case."
In its own friend-of-the-court brief, ExciteAtHome argues that "the municipal regulations at issue in this appeal present a serious threat to the development of cable-based Internet access services." Excite (ATHM) asserts that "cable operators ... have invested billions of dollars to upgrade their facilities to provide content-enriched Internet access to consumers at attractive prices. Throughout the United States, consumers are enjoying the benefits of these efforts, although cable Internet services still serve a very small share of the market. Companies that have declined to invest in new facilities or new services now seek government assistance to obtain forced access to cable facilities and free-ride on these investments."
A coalition of Internet users called Hands Off the Internet has filed a brief in support of AT&T. "There is an established federal policy concerning the regulation of broadband access, and that policy is: 'Hands Off the Internet,'" the brief reads. "Federal regulators carefully have considered the issue, and have determined that no regulation of broadband access is necessary or desirable."
The Case for Open Access
Attorneys for the city of Portland and Multnomah County argue that AT&T's definition of cable regulation "is fundamentally wrong" in its assertion that local jurisdiction is preempted by federal law. "Local franchising authority does not derive from federal law; it predates it. Local governments franchised cable television pursuant to their traditionally broad sovereign powers over businesses that sought permission to occupy public rights-of-way to earn private profit," the city and county argue in a brief filed with the appeals court.
The city and county recognize that federal law limits local authority in some respects - over cable rates, for instance - but they say their authority does extend to cable facilities and equipment requirements that relate to "channel capacity, system configuration and capacity ... headends and hubs ... and any other facilities or equipment requirement that is related to the establishment and operation of a cable system."
The Oregon Internet Service Providers, a nonprofit corporation representing more than 40 companies that offer Internet access and online services to Oregon residents, refutes AT&T's principal claims by arguing that the Portland ordinances do not involve "content-based" restrictions, do not constitute "compelled speech" because they do not compel AT&T to distribute any speech the company is unwilling to distribute, and do not burden the company's free-speech rights at all.
Attorneys for GTE and U S West argue that AT&T's appeal constitutes "a fundamentally flawed concept of federalism." The brief argues that "what the [Communications] Act does establish is that local franchising authorities 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."
Consumer advocates - the Citizens' Utility Board of Oregon, Consumer Action, Consumer Federation of America, the Utility Reform Network and Utility Consumers' Action Network - also filed a brief in support of Portland, arguing on behalf of "the interests of consumers in obtaining unfettered and affordable access to the diverse sources of information available through the Internet."
"Vigorous competition among providers of broadband access to the Internet benefits consumers in two ways," the group brief states. "Truly competitive markets yield lower prices, higher quality of service, and increased innovation. Competition also promotes the First Amendment's objective of a diverse flow of ideas and opinions. ... The Portland ordinance promotes both the First Amendment and economic interests of citizens and consumers."
The City of San Francisco, writing on behalf of a host of municipalities, as well as the U.S. Conference of
