Oregon: Past and Present, A Model for the Nation on Broadband Policy
Oregon: Past and Present, A Model for the Nation on Broadband Policy
Oregon: Past and Present, A Model for the Nation on Broadband Policy

    Get Involved Today

    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. 

    If you want to learn more about David Olson and his service to the people of Portland, check out this video and this 1999 Washington Post article.