9th Circuit Court Decision on Portland

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IRVING, Texas - The United States Court of Appeals for the Ninth Circuit issued a decision today in AT&T; Corp. v City of Portland. AT&T; had appealed a June, 1999 Oregon federal district court ruling confirming the authority of Portland and surrounding Multnomah County to require cable open access as part of TCI's cable franchise transfer to AT&T.; In the case before the district court, all parties had assumed that cable modem service was a cable service. However, in an amicus brief filing with the appeals court, the FCC questioned this assumption but did not take a position on the proper legal classification of cable modem service. GTE had intervened in the case and filed brief supporting Portland.

In today's decision, the Ninth Circuit ruled that cable modem service falls under the legal classification of a telecommunications service. As such, the court overturned the lower court ruling. However, by finding that high-speed access to the Internet via a cable system (cable modem service) is a telecommunications service, the court has subjected the cable industry to the same open access requirements applicable to telephone company-provided broadband (DSL) Internet service.

The following may be attributable to John F. Raposa, GTE Associate General Counsel:

"The Ninth Circuit has struck a decisive blow for consumers and competition. By determining that cable modem service is a telecommunications service, the court has ensured that the broadband on-ramps to the Internet will remain open. As a telecommunications service, AT&T; and the cable industry are now required to open their cable modem networks to competitive ISPs on a nondiscriminatory basis. In sum, the appeals court's decision means 'checkmate' for the cable industry's attempt to monopolize broadband consumer access to the Internet. The cable industry will now have to take their "hands off" the Internet, which they have attempted to throttle by monopolizing high-speed access.

The court's decision is the 'nightmare scenario' for the cable industry, that have used all of their resources and lobbying prowess over the past year to obtain and protect special treatment for their affiliated Internet service providers such as Excite@Home. With this ruling, all ISPs will be on an equal footing and both cable and telephone company-provided high-speed Internet access will be subject to that same nondiscrimination requirements."

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