Last week I had the privilege of travelling to Hood River
Oregon to speak at the Oregon Connections Telecommunications Conference. Here
are my prepared remarks, which focused on policy issues affecting cloud
Little did I know when I arrived in Oregon that the state
not only has a rich history when it comes to progressive telecommunications
policies, it also has become a model for what states and localities can do to
provide their citizens access to affordable high speed broadband. In light of the gridlock in Congress (which
is unlikely to get any better even after the election) and the lack of courage
at the FCC (which may or may not change), it will fall to these state and local
governments and the citizens they serve to do what the feds seemingly cannot or will not – provide a robust
competitive marketplace for broadband Inernet access.
I will discuss what Oregon is doing to promote a connected
broadband future in the coming weeks. I
have also pledged to my new friends in the state to help them write the history
of their success so that others can follow their lead. This first post will place Oregon, and
Portland in particular, in its rightful place in Internet History.
After my conference remarks, I was asked by an audience
member to talk about how it came to be that the FCC’s legal ability to protect
consumers with regard to broadband had been weakened by both Democratic and
Republican FCC Chairmen alike. But my
questioner, David Olson, already knew. He
was the City of Portland’s Cable Communications Director and the Executive Director of the Mt. Hood Cable Regulatory Commission (the franchising authority for Portland and 5 other local governments) in 1998. That was when the latter body recommended, and the City of Portland voted, to condition the transfer of TCI’s franchise
to AT&T on a requirement making its cable modem platform available to
competing Internet Service Providers on a non-discriminatory basis (then known
as “open access”). AT&T refused to
accept the condition, which led to litigation resulting in the 9th
Circuit’s decision in AT&T Corp. v.
City of Portland, which ruled that Portland could not condition the cable
franchise on an open access condition because “the transmission of Internet
service to subscribers over cable broadband facilities is a telecommunications
service under the Communications Act.”
The upshot of the court decision was that while Portland
lost the battle, it had won the war. Because the transmission portion of a cable modem service was not a cable service, the court ruled that it didn’t need a franchise. However, by
declaring that it was instead a “telecommunication
service, ”AT&T would be subject to the non-discrimination requirements of
Title II of the Communications Act.
This would accomplish the same goal as the open access condition.
Unfortunately, the FCC
undermined the court decision in 2002, when it said that all of cable modem
service, both the transmission and the Internet services that rode on top (like
email and web services) were deregulated information services.
This decision was appealed, resulting in the Supreme Court’s
Brand X decision, which held that the
FCC’s could permissibly interpret the Communications Act in this way. (Justice Scalia vehemently disagreed in his dissent). Soon thereafter, the FCC moved to similarly
deregulate telephone broadband access service.
Without going through the whole Title I-Title II/net
neutrality rigamorole for the umpteenth time, suffice it to say that the Brand X decision and the current FCC’s
refusal to reverse its decisions to classify broadband access services as
information services has brought us to a situation today where the FCC’s power
to protect consumers in matters related to broadband is suspect and challenged
at every opportunity.
But David Olson and the City of Portland are hardly the ones
to blame for this outcome. Olson told me that he tried mightily to convince the Clinton
FCC (then under Chairman William Kennard) either to support Portland’s efforts to impose the open access condition or to classify cable modem transmission as a telecommunications service. The Commission steadfastly refused to act either way, leaving it to the George W. Bush FCC to deregulate the service. In any event, the question of how cable broadband Internet
access would be regulated was sure to come before the courts or the Commission
eventually. But in their desire to
ensure that the citizens of Portland continued to benefit from broadband
competition, David Olson and the Portland cable commission were willing to fight
all the way to the Supreme Court.