September 12, 2000 5:00 AM PDT

U.S. regulators mull policy on cable "open access"

WASHINGTON--The Federal Communications Commission will launch an inquiry Thursday into mandating access to cable systems for Internet services, following two years of clamoring by open access advocates and three contradictory court decisions.

According to FCC sources, a wide range of issues will be examined, among them: the jurisdiction of the FCC relative to state and local governments; to what extent regulations need to be rewritten for cable to bring it in line with other services such as DSL, satellite or wireless providers; and how the commission could regulate online access while preserving "the vibrant and competitive free market that exists for the Internet."

The debate surrounding "open access" was once a contentious one, with Internet service providers such as You've got Time Warner America Online on one side of the fight and cable companies such as AT&T on the other. Much of the hostility has dissipated as each camp has made moves to placate its critics. In addition, news of AOL's recent merger plan with Time Warner has altered the tone of the debate.

The FCC's action at its monthly meeting Thursday will still disappoint cable open access advocates, as the commission will be launching only a request for public comment, rather than proposing firm rules. That sort of proceeding, if it were to come at all, wouldn't be for some time, leaving those who view the cable industry as having a regulatory advantage in high-speed Internet access unsatisfied.

"It's too early to say if there should be a (policy)," one agency official said. No FCC official would give a time frame in which the inquiry could lead to commission action.

Although the initial hearing comes at a time when the FCC and Federal Trade Commission are reportedly considering imposing open access on AOL and Time Warner as part of their merger, a high-ranking FCC official said the motivation for the inquiry comes from a series of court rulings that have provided a muddled picture of the agency's role in high-speed Internet access.

Three decisions were made during the past year. The 9th U.S. Circuit Court of Appeals ruled that cable Internet service should be viewed as a telecommunications service. The 4th Circuit said it should be regulated as a cable service, which would be more lax. The 11th Circuit said neither was accurate. The only thing clear to advocates of open access, though, was that if it were to be imposed by regulators, it would have to come from the FCC.

The court decisions focused on cable high-speed Internet services, and Thursday's inquiry also will begin with that issue. However, sources made it clear that the review is "wide open." One possibility is that the FCC might create a new regulatory structure to deal with high-speed Internet access regardless of the type of carrier providing it.

The FCC's Thursday meeting of commissioners also will include a review of cable compatibility with digital TV sets. It's possible the agency will mandate labels that would inform consumers to what extent TV sets are cable-ready.

Also on the agenda is telecom access to multi-tenant buildings such as office and apartment buildings. Competitive carriers, both wireless and traditional, have complained that landlords don't give them access to customers seeking alternative telecom providers.

It's expected the agency will give its opinion as to whether, or to what extent, it has jurisdiction to instruct landlords what to do in terms of access to their own buildings. Billions of dollars are at stake, and many suspect that regardless of what the FCC decides, the issue may be decided in federal court.

 

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