By Jeffrey Krauss, Open Access explicator and President of Telecommunications and Technology Policy

The Ninth Circuit Court of Appeals has overturned the Oregon District Court decision and has prohibited Portland from imposing an Open Access requirement on AT&T Broadband. Amazingly, the losers have claimed victory! Anyway, the real question now is how Open Access will be implemented, not whether. As most of us expected, the Ninth Circuit Court of Appeals has decided that cable modem service is telecommunications, not cable TV service, and therefore the city of Portland is prohibited from imposing Open Access requirements. The court said that "Portland may not condition the transfer of the cable franchise on non-discriminatory access to AT&T's cable broadband network." The decision was clear on the point that only the Federal Communications Commission has the authority to regulate (or choose not to regulate) cable broadband services.

Incredibly, the OpenNet Coalition calls this decision "a decisive win"! The OpenNet Coalition is a front for local telephone companies that are trying to use the controversy to slow down the rollout of cable modem service until they can deploy DSL service. Initially, the OpenNet Coalition was put together by AOL, but circumstances changed when AOL decided to buy out the cable modem operators (at Time Warner) rather than fight with them. By then, the coalition had taken on a life of its own and was captured by the telcos and other Internet Service Providers (ISPs).

But if they lost, how can they call it a win? Here's their argument. By calling cable modem service "telecommunications," they say that the court has forced the FCC to regulate the service. And, they say, the FCC will have to impose the same regulatory regime on cable modem service that applies to local phone service. Remember that telcos are subject to Equal Access requirements, so that any subscriber can use any long distance carrier, and that was the model for cable modem Open Access.

But that's not quite right. While the FCC has the authority to regulate telecommunications services, it also has the authority to forbear from regulating, if that is consistent with the public interest. But first, the FCC itself has to determine that cable modem service is a telecom service. In spite of what the Ninth Circuit said, the FCC could decide that cable modem service is an information service, which is not subject to FCC regulation. While FCC Chairman William Kennard said the FCC will address the subject, a proceeding leading to a decision would take months, or years. Even if the FCC decides that some part of cable modem service is telecommunications, it does not have to apply local telco regulation such as Equal Access. Telephone Equal Access was imposed by Judge Greene, as part of the AT&T antitrust case, and not by the FCC.

So it is clear that we are months, probably years, away from any government decision on cable modem Open Access. But maybe that doesn't matter, because several of the larger MSOs have agreed to implement some form of Open Access.

Implementing Open Access

Exactly what will the MSOs implement? Just what exactly does Open Access mean? What does it mean to require non-discriminatory access to a cable broadband network?

Does Open Access mean that each household can subscribe to an unaffiliated ISP? Or does it mean that each person within a household can subscribe to different unaffiliated ISPs? That's an important question, because it affects implementation decisions. It has an impact on login and authentication procedures. It has an impact on how Internet Protocol (IP) addresses are assigned, and by whom. It determines whether an Internet access connection is "always on," and whether a computer can act as a network server.

There are also differing vendor proposals for implementation of Open Access. Some vendors are proposing approaches based on "source-based" or "policy-based" routing, where a router opens every IP packet, looks at the source IP address, and determines from a table lookup which ISP gets the packet. Others are proposing "tunneling" or "encapsulation" approaches, where a new header is added to each packet containing the address of the selected ISP. This may require additional software for each computer, or perhaps Windows already contains adequate tunneling capability. And perhaps there are other approaches.

Does Open Access require that an unlimited number of unaffiliated ISPs be supported? Or merely a "sufficient" number? While there may be many approaches that work for a few ISPs, not all approaches are scalable to support very large numbers of ISPs. Perhaps the trials that AT&T Broadband and Time Warner are planning will look at this question.

I don't know which is the best way to implement Open Access. But if I were an ISP like Mindspring, with a nationwide footprint, I'd want it implemented the same way on every cable system throughout the country. I'd want national standards. But the SCTE, which is the cable industry's standards organization, hasn't received any standards proposals yet.

And to the OpenNet Coalition, we salute you. You have our permission to keep claiming victory every time you lose. And, we wish you many more losses.