Cable Internet Unbundling: Local Leadership in the Deployment High Speed Access

I. INTRODUCTION The evolution of law and technology has led to substantial activity in the field of communications law. The growth in popularity and use of the Internet has made it an area of economic, technological, and social interest. This has brought it to the attention and regulatory interest of the Federal Communications Commission (FCC).(1) The Internet, however, poses problems for the traditional regulatory paradigms that the FCC has come to rely upon.(2) This is true not only for the Internet itself, but also for the areas of intersection between the Internet and "traditional" media, such as telecommunications and cable. With the pending merger of TCI and AT&T and their promise of "one-stop" television, Internet, and telephone service, the cable Internet issues move to the forefront. The FCC and Congress responded by trying to induce increased competition in communications fields.(3) The desire of traditional Internet Service Providers (ISPs) to gain access to new high-speed technologies for Internet access led to requests for unbundling or open access to cable systems.(4) Such requirements would allow ISPs to lease elements of the cable company's infrastructure to compete with the cable company's own ISP. Despite the focus of most of the attention and advocacy toward the federal level, local authorities took the first regulatory step toward open cable Internet access. Portland, Oregon, and surrounding Multnomah County were chosen for early access to the television-Internet-telephone service package to be offered by the merged AT&T and TCI.(5) To implement this marketing strategy, TCI needed local approval to transfer its existing cable franchises to AT&T. In an effort to meet community needs, however, the local authorities in Portland and Multnomah County conditioned such a transfer on the provision of open access to the "cable modem platform." Unable to reach a compromise with the local governmental bodies, AT&T and TCI filed suit in district court in an attempt to overturn the imposition of the open access requirement. In AT&T Corp. v. City of Portland,(6) the district court held that the actions of the local authorities were justified under existing law.(7) AT&T and TCI appealed this holding to the Ninth Circuit,(8) ensuring that the issue of unbundling of cable Internet access remains in the spotlight in the near future. More directly, however, the lawsuit attempts to settle the question of the legitimate role of local regulators regarding cable Internet access. This Comment begins by looking at the technologies that exist for providing Internet access. This includes traditional "dial-up" access using a modem and local phone lines, as well as a variety of technologies to allow high-speed access. The facts surrounding the imposition by Portland and Multnomah of an open access requirement on AT&T and TCI will be considered next. Finally, the merits of open access will be considered, as well as the authority of local regulatory bodies to impose such a requirement. II. TECHNOLOGY Before addressing the specific justifications for unbundling or open access to the cable Internet platform, it is useful to have a basic understanding of the technologies for Internet access. This will begin with a brief consideration of the current narrowband modem over telephone line method. Next, technologies for high-speed access other than cable will be considered. Finally, the technology of cable Internet access, as well as the two major cable ISPs, will be discussed. A. Current "Dial-Up" Access Currently, the most common method of Internet access among private individuals is the combination of a modem over the regular, twisted-pair telephone line used for telephone access. Users dial up an ISP, which provides the user with a connection to the Internet. Data can be sent and received from the Internet, given the capability of modems currently available, at speeds of up to fifty-six kilobytes per second (Kbps). …