Tuesday, January 5, 2010

Having Its Cake and Eating it Too--Shirking Common Carriage While Retaining Rights of Way Access and Other Benefits

AT&T's new gambit to rid itself of pesky Title II common carrier responsibilities prompts me to ask (and tentatively answer) this question: when, if ever, do Title II carriers lose common carrier/public utility free or below market access to rights of way and other benefits designed to offset the costs of common carriage? Put another way: do information service providers have any rights to public utility upside opportunities.

Some time ago, Comcast decided it wanted to install a mini-refrigerator sized amplifier on my property, ostensibly to "improve" service. For the sake of discussion, let's assume the amplifier had nothing to do with its cable service and its installation would not raise questions about the scope of rights of way available to Title VI regulated cable operators. In other words, the amplifier enhances Title I lightly regulated information services, such as broadband. I took issue with the installation of the eyesore, mostly because Comcast did not see the need to inform me of its "need." I argued that Comcast did not have the legal right to bootstrap its existing cable service right of way to install a new pedestal having not connection to its limited purpose right of way.

Comcast refused to engage me in a dialog, but they did dismantle the mini-refrigerator apparently installing it elsewhere.

The Telecommunications Act of 1996 illogically and probably unintentionally toggles between the use of the term telecommunications provider and telecommunications service provider.when addressing access to rights of way issues. We now know the FCC--with approval by the Supreme Court in Brand X--differentiates the two terms. But for purposes of rights of way, the Commission very well may not differentiate. Bootstraping the same sections of the Act to justify its jurisdiction to make federal Internet policy, the Commission probably would claim that even information service providers need rights of way to promote universal access to advanced telecommunications capabilities (Sec. 706) which in practice includes Internet access and arguably some types of information services.

In a nutshell it seems to me AT&T and others can further shirk its common carrier/public utility obligations while continuing to exploit rights of way access and other benefits.

Such a deal.

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