It follows that the City and County, acting pursuant to their police powers, had the right to impose the open access condition. The argument is wrongheaded in any event. Appellants have always contended that their cable modem service is a cable service provided over a cable system. Third party provision of similar service on the same system does not transform cable facilities into telecommunications facilities. Appellants read this so broadly that it would literally preempt any regulation that could in any respect affect the equipment and facilities used by a franchisee.
Appellants argue requiring open access to facilities is by definition common carrier regulation.
The Portland open access condition, like those requirements, has nothing to do with common carriage and everything to do with protecting competition. Every court interpreting this section has read it narrowly to prohibit only requirements that are aimed at controlling the content of cable services. The open access condition does not require the provision of any particular content, by the Appellants, or by anyone else. Privacy Policy Copyright 1998-2001 David Carney, dba Tech Law Journal. All rights reserved.