The America Online-Time Warner merger moved the open access/forced access debate to center stage, as the Federal Communications Commission opened a general inquiry into the question of broadband access and courts continued to review local access requirements. In one case (discussed below), the U.S. District Court for the Southern District of Florida held that a cable franchise requirement forcing the operator to provide access to its broadband platform by competing Internet service providers (ISPs) violated the First Amendment.

    The most significant regulatory actions regarding open access came with the Federal Trade Commission and FCC approvals of the AOL-Time Warner merger. The FTC found that the merger would have an anticompetitive effect, but approved the arrangement subject to a consent order signed by the two companies. The order requires AOL Time Warner to make available the competing ISP service offered by the second largest ISP, EarthLink, before AOL begins offering its own broadband service in Time Warner’s largest cable divisions. Two other non-affiliated ISPs must also be provided within 90 days.

    In Time Warner’s smaller divisions, AOL Time Warner must enter into agreements with at least three non-affiliated ISPs within 90 days after making AOL’s broadband service available. If AOL Time Warner fails to enter into any of the required agreements within the specified 90-day time period, the FTC may appoint a trustee who will have the authority to enter into such agreements on Time Warner’s behalf. The consent decree, which also contains provisions prohibiting content discrimination in the provision of interactive services, has an effective term of five years.

    The FCC also imposed conditions in approving the merger. Specifically, AOL Time Warner must allow all customers to choose Internet service from any unaffiliated ISP that has a contract with the merged company to use its cable TV facilities. AOL Time Warner must also enable the competing ISP to provide "first screen" service when its customers go online without interposing any intermediary screens.

    In addition, the merged company must allow unaffiliated ISPs to have direct billing relationships with their subscribers, and AOL Time Warner cannot discriminate in favor of affiliated ISPs as to customer technical support, address management, caching services, multicasting capabilities, or other technical functions. Finally, the FCC prohibited AOL Time Warner from offering any new advanced instant messaging high-speed service, feature, or enhancement that includes one- or two-way streaming video communications using a "names and presence directory" unless it can demonstrate the offering will not be anticompetitive.

    Whether the access requirements imposed on AOL Time Warner are unique to that transaction or will be a common requirement for providers of broadband Internet service was a question posed by an FCC Notice of Inquiry issued last fall. Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Gen. Docket No. 00-185, FCC 00-355 (rel. Sept. 28, 2000). The FCC asked a wide range of questions about what legal and policy approaches are appropriate for such services, focusing particularly on controversial issues surrounding the provision of high-speed Internet access over cable modems, the appropriate regulatory classification of such services, and whether nondiscriminatory or "open" access should be mandated.

    The Commission asked whether it should continue its current "hands-off" approach to cable modem service regulation, or consider adopting rules governing the service and/or open access. The wide-ranging Inquiry demonstrated how complicated the access issue has become by focusing on policy, legal, economic, market, technical, and operational questions regarding cable-based Internet service, as well as regulatory issues regarding cable set-top boxes and Internet protocol telephony.

    Finally, in a separate, narrowly focused decision touching on issues of regulatory classification, the FCC issued a declaratory ruling that Internet service providers do not qualify for cable leased access under Section 612 of the Cable Act because Internet service is not comparable to television programming. Internet Ventures, Inc., FCC 00-37 (rel. Feb. 18, 2000). Section 612 requires cable system operators with 36 or more channels to designate capacity for "commercial use" by unaffiliated third parties. For purposes of the leased access requirements, the Act defines "commercial use" as the "provision of video programming," and "video programming" as that "provided by, or generally considered comparable to programming provided by a television broadcast station."

    The Commission noted that Congress intended the "video programming" definition to take its meaning from the services that were available in 1984, when the provision was adopted. Moreover, it pointed out that Internet access describes a "varied array of services" beyond the mere provision of video programming. Accordingly, the Commission concluded that cable operators were not compelled by Section 612 to lease channel capacity for Internet access services.

    Local broadband access requirements in cable television franchises prompted litigation over the legality of such requirements. Although the cases presented various issues of federal communications and antitrust law, regulatory classification of service, federal preemption of local authority, and questions involving the Contract and Commerce clauses, the focus of this chapter is the claim that such requirements violate the First Amendment.

    Opponents of broadband access requirements generally argue that such obligations constitute a form of compelled speech in violation of the principles established in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). As such, access requirements should be evaluated under First Amendment strict scrutiny. Even if evaluated as content-neutral economic regulations akin to must-carry rules, according to this position access requirements should be struck down because it has not been demonstrated that the need for such measures is real, not conjectural, or that the requirements would alleviate the harm in a direct or material way. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994). Proponents of access requirements argue that, like must-carry rules, broadband access is content neutral, and that such rules are needed to prevent cable operators from dominating the market for high-speed Internet services, thereby suppressing speech.

    The leading case, AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000), invalidated access requirements but did not reach the First Amendment question. The district court in that case had rejected AT&T’s First Amendment arguments, concluding that an access requirement did not implicate the cable operator’s speech interests. AT&T Corp. v. City of Portland, 43 F. Supp. 2d 1146, 1154 (D. Or. 1999), citing PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). The court considered the access mandate an economic regulation subject to intermediate scrutiny, and found that the measure was justified by the substantial governmental interest in preserving competition.

    The court of appeals reversed the district court on statutory grounds. It rejected the assumption that broadband Internet service is a "cable service" under the Cable Act and found that the operator was not required to obtain a franchise to provide Internet service over cable facilities. Accordingly, the local franchising authority lacked jurisdiction to impose any open access requirement.

    In another case, the U.S. District Court for the Eastern District of Virginia invalidated open access requirements without reaching the First Amendment issue, although it classified broadband Internet service as a "cable service." MediaOne Group, Inc. v. County of Henrico, 97 F. Supp. 2d 712 (E.D. Va. 2000). The court found that the Cable Act barred franchising authorities from prescribing the use of any particular subscriber equipment or transmission technology, and prohibited regulation of cable operators as common carriers.

    In contrast to the approach of the other cases, the U.S. District Court for the Southern District of Florida confronted the First Amendment questions directly in Comcast Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685 (S.D. Fla. 2000). Judge Donald M. MiddleBrooks held that the technology of Internet transmission could not be regulated without restricting speech. "Under the First Amendment," he wrote, "government should not interfere with the process by which preferences for information evolve. Not only the message, but also the messenger receives constitutional protection."

    Accordingly, Judge MiddleBrooks applied strict First Amendment scrutiny to the access requirement, finding that "differential treatment is not justified by some special characteristic of the medium being regulated." He rejected Broward County’s argument that the open access ordinance regulates "only trade practices and not speech," concluding that "content and technology are intertwined in ways which make analytical separability difficult [and] perhaps unwise."

    The number of federal agencies and courts examining the issue of open access guarantees that Judge MiddleBrooks’s opinion will not be the last word on the First Amendment questions at issue.