AT&T asks court to overturn open access ruling

The long distance and cable giant says it is seeking a expedited appeal of a recent federal court ruling that could force it to open its cable Internet networks to outside ISPs.

John Borland Staff Writer, CNET News.com
John Borland
covers the intersection of digital entertainment and broadband.
John Borland
3 min read
AT&T said today it is seeking a expedited appeal of a recent federal court ruling that could force it to open its cable Internet networks to outside ISPs.

In addition, AT&T executives said they would not roll out the high-speed @Home cable Internet service in Portland until the appeal had been completed.

A federal judge in Portland, Oregon ruled nearly two weeks ago that the city had the legal right to force AT&T to allow other ISPs to offer their service over its cable network, a mandate that AT&T and other cable companies have so far resisted.

This "open access" mandate has been a focus of ISPs like AOL and MindSpring, and competing telephone companies like GTE , since AT&T announced its merger with Tele-Communications Incorporated last year.

Currently, AT&T and other cable companies require their cable Internet subscribers to use an affiliated ISP, such as Excite@Home.

AT&T said shortly after the Portland ruling that it believed the judge had misread the issues in the case, and said it would pursue further legal options. Today the company filed for an appeal, asking the often-clogged 9th Circuit U.S. Court of Appeals for an expedited hearing of the case.

In its filing with the court, the company argued that the federal Cable Act bars cities from forcing cable companies to open their networks to competitors.

"The ruling requires that AT&T provide essentially an unbundled communications service as a condition of offering cable service," said AT&T attorney Mark C. Rosenblum in a press conference announcing the appeal. "That is exactly what the law says municipalities can't do."

The company is not filing for a stay of the decision, which would immediately prevent the judge's ruling from going into force, largely because the cable Internet service is not yet available in Portland. "We're not in an emergency or crisis situation," said AT&T general counsel Jim Cicconi.

Nevertheless, the company says it will suffer "irreparable harm" if it is forced to live under the earlier ruling, since it will be prevented from rolling out the @Home service in Portland.

"We are unable to [roll out @Home] without violating the ordinance they've put in place," Cicconi said. "We have no legal or technical ability to comply with the ordinance."

The company's technical ability to open its cable Net systems to outside ISPs has been the source of considerable contention over the last few weeks, however.

AOL and GTE released news of a trial project on Monday, in which America Online and CompuServe had successfully linked into GTE's cable services for two months. AT&T and @Home executives responded today saying that the trial project had ignored technical issues that would be problematic in a large-scale rollout of an open-access cable system.

The Portland decision has sent shockwaves through the policy community over the last several weeks, bringing open access back to the forefront of debate.

Yesterday, Federal Communications Commission chairman William Kennard blasted the Portland judge's decision, saying that allowing each individual city to make its own open access policy would lead to "chaos."

"It is in the national interest that we have a national broadband policy," Kennard told an appreciative audience at the National Cable Television Association convention in Chicago.

Nevertheless, AT&T lawyers said they believed they had to win their case in court, rather than going through the FCC.

"As a practical matter, we don't think the FCC has the power to step in and reverse a federal court decision," Rosenblum said.