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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 computing.
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.