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Hurry Up And Wait: States Explore Open Access
At every local government association meeting during the past few months, the issue of opening up competition to broadband Internet access has been at the top of the agenda. Industry lobbyists flock to see what the mood is in the heartland, but state policymakers pop their heads in to see what all the fuss is about.
But for all the discussion, few state legislators have promoted their opinions on the issue. A few, like Pennsylvania's Ron Raymond and New Mexico's Pauline Eisenstadt, have made their position public by authoring bills mandating competitors' access to cable networks. But most legislators continue to attend meetings and listen to lobbyists wax on the issue in the hope of developing an opinion for themselves.
The one issue where state politicians can almost always find camaraderie is federalism. Where a clear position may be difficult to detail, the opinion that state rights should not be overridden by federal government's moves is bipartisan. On tricky topics, local government associations usually will release broad statements that press for state sovereignty. But the open access issue is so dicey that even some state lawmakers have suggested that this may be one area they'd be glad to hand over to the federal government. Many lawmakers question the idea of a "patchwork quilt" of regulations that would blanket each state and say the issue should be decided on a national level.
The mass confusion on the issue is further muddled by some recent moves by AT&T, which in the past few weeks announced would open its cable network to competitive ISP MindSpring after its exclusive contract with ExciteAtHome expires in 2002.
The field is tricky for state legislators and the industry players who are trying to read the lawmakers' reactions. While at least three state and local organizations had announced they would discuss their positions on open access in December, not one came away with substantive policy resolutions, leaving state legislators to fend for themselves and await further action on the issue.
Whose Issue Is It, Anyway?
The most obvious reason for the delay might be the hubbub that ensued after Portland, OR, decided that open access to cable networks would be part of its requirements for AT&T and Tele-Communications Inc.'s new cable contract. AT&T sued, saying the issue could not be decided by the local regulators, and some industry insiders have suggested that fear of a lawsuit has frozen action in many localities. But until that decision is handed down, lobbyists have spread themselves throughout the nation in an attempt to persuade other local boards to make open access a condition of their cable contracts. It may be working.
Just this week, four cities in Massachusetts requested that the state's cable division reject a franchise transfer request from AT&T and MediaOne until full hearings on the issue of open access are held. In the filing from Cambridge, North Andover, Quincy and Somerville, MA, the towns noted that AT&T's Dec. 6 filing with the FCC indicated that open access is technically and financially feasible, further laying foundation for open access advocates to push their position. Although those proponents are lauding the move, some have praised the cities specifically for not making a decision.
"Since there is no reason why the [Department of Telecommunications and Energy] has to act so quickly to approve the transfers, it will now have the chance to decide what is more important - creating good public policy or rubber stamping the business plans of the cable monopolies," said Greg Simon, co-director of the OpenNet Coalition, a group lobbying for open access.
Other groups are waiting too. The National Conference of State Legislators has postponed a resolution on the topic indefinitely, and this past week, the American Legislative Exchange Council (ALEC) held a panel discussion on open access but will try to hash out its own statement in an early January meeting.
Still At A Stalemate
"I think they're split," Frank Thompson, director of strategic alliances for Bell Atlantic, said of the legislators. "A lot of this is a breaking-news type of thing to them. This has been a local issue, and that's the way they've viewed it. Now it's starting to be elevated to them. A lot of this is new information to them."
Nevertheless, some of them have been more proactive. Culver City, CA, voted unanimously Monday evening to include an open access provision in its cable transfer approval. "We're not interested in regulating the Internet," said Culver City Mayor Richard Marcus. "We are interested in regulating our [cable] franchise as the law allows us to do." Two days later, the Henrico County Council in Virginia took similar action, prompting open access advocates to declare the momentum is gaining for their position.
But that's not what AT&T likes to hear. Last week, columnist James Glassman of the conservative think tank American Enterprise Institute tried to sway state policymakers at an ALEC luncheon sponsored by AT&T. Touting free-market principles, Glassman told state lawmakers something they weren't expecting to hear: that President Clinton should get credit for his hands-off policy towards the Internet. Glassman also used the forum to encourage politicians to stay out of other issues related to the Internet, specifically, open access.
"Don't create a welfare state," Glassman said, "Don't get in between the creators and consumers."
It's not clear whether state legislators will heed his suggestion, but most observers say the moves will come further down the line.
Rep. Tom Armstrong, R-PA, admits he's leaning towards an anti-forced access position but said he needs additional information to feel comfortable pushing forward with regulation. As a member of the FCC's Local and State Government Advisory Committee, Armstrong said he's in favor of watching cable companies guardedly to make sure the technology is rolled out and no monopoly is created.
"When it can statistically be proven, then let's make the move," Armstrong said. "So that we're not working on hypotheticals."
—by Stephanie Lash
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