Excite@Home takes cable fight to court

SAN FRANCISCO--Opposition to "open access" cable regulations is mounting as the Federal Communications Commission and Excite@Home filed court documents asking federal judges to carefully consider an earlier ruling that could help open cable networks to competitors.

The FCC and Excite@Home filed "friend-of-the-court" briefs yesterday urging that the U.S. Ninth Circuit Court of Appeals not require AT&T, the nation's largest cable operator, to open its wires to competing Internet service providers such as America Online and MindSpring Enterprises.

Excite@Home specifically asked the appellate court to overturn the earlier ruling. Although the FCC stopped short of seeking to overturn the earlier case, the commission said in its filing that it believes it is "the only agency with jurisdiction over all the current providers of broadband technology."

FCC chairman William Kennard has continually said a patchwork of local cable Internet regulations would create "chaos."

The federal appellate judges are reviewing a lower-court ruling that upheld Portland, Oregon's right to impose equal access requirements for unaffiliated Internet service providers.

In its court filing, Excite@Home, the largest high-speed cable modem service, said so-called open access is "tantamount to permitting third parties to 'free ride' on the substantial investment of Excite@Home and its cable partners."

The filings, which had been expected for weeks, come as a second group of high-tech and investment companies prepare to announce their opposition to proposed regulations that the cable industry likes to call "forced access."

Investment bank BancBoston Robertson Stephens, financial services company Charles Schwab, and several Internet start-ups including Onsale, Critical Path, and WebMD will urge federal regulators to oppose open access in a letter expected to be sent to the FCC today.

"If the Ninth Circuit does not overturn the lower court's decision, the Internet's rapid growth could be slowed by a raft of inconsistent local policies," the companies wrote in a draft of the document.

Similarly, the Information Technology Industry Council last week opposed so-called open access to cable wires by ISPs in a letter to the FCC because cable Internet access is still an emerging service.

The trade association, which represents such high-tech heavyweights as Microsoft, Intel, Cisco Systems, Sony Electronics, and others, backed the FCC's decision to file a brief supporting the cable industry's wishes in an appellate court case on the issue. However, the group did call on the FCC to study cable access.

Reuters contributed to this report.