Draft of the Oposition to the Motion for Summary Decision

Introduction

What were initially granted by Cambridge, North Andover, and Quincy initially granted licenses to establish community antennas and cable networks through our streets so that our residents could have better access to television. Through advances in technology this access is now to be transformed to an Internet pipeline through which can pass everything capable of expression in bits.

AT&T, once master of our national telecommunications system until broken up by force of government and law, is embarked upon a business strategy to once again place itself at a constriction point in our ability as citizens and businesses to exchange between us. Consider, for example, what will happen when AT&T achieves sufficient efficiency of transmission through its cable to deliver full-screen full-motion video. Suddenly the interface (whether called computer or smart tv) opens to large numbers of channel/urls. When this happens, the cable television businesses AT&T is now absorbing will be threatened by equivalent content through the Internet, unless AT&T can use its desired power to discriminate. Whose content will be allowed to move through AT&T's constriction point the fastest? Whose frame rates will be forced to slow down?

We owe the explosive growth of the Internet to its open architecture -- open end to end. Ironically, we owe this in significant part to the elimination by force of law of AT&T's earlier constriction of the plain old telephone network. (for full development of the historical narrative and fundamental relationship between open Internet architecture and competitive growth, see affidavit of Professors Larry Lessig and Mark Lemley recently submitted to the FCC <http://cyber.law.harvard.edu/works/lessig/cable/fcc/fcc.html>

If AT&T succeeds in establishing a national broadband telecommunications network while also capturing and extending the powers given community cable antenna companies to discriminate among content providers, it will unquestionably have achieved a position from which it is capable of exacting monopoly rents. True, AT&T's broadband network will face competition from other forms of broadband delivery (DSL, satellite), yet while AT&T has the sole network connection to a major segment of the national Internet population, coupled with ability to discriminate among providers of Internet services and content, then they are in position to favor their own content and services and that of their affiliates.

Cambridge, North Andover, and Quincy are high tech communities, deeply invested in the history and future of the Internet. We see no reason unconditionally to approve a transfer calculated to establish a constriction on the open end to end architecture of our connection to the Internet.

We see subsumed in it the equally important issue of local control of rights of way. The laws of our Commonwealth, the regulations of an agency that is meant to serve us, should not be interpreted and applied to stifle us, literally declaring that we have no power even to consider the open access issue.

[history of promulgation of 4.04

Somerset, Docket A-64 at 4-5, explaining Bay Shore Cable TV Assoc v. Weymouth, Docket A-55 (1985)

Cambridge not a party to the adoption of these regs.

None of these commission regs have ever been challenged and validated on appeal. We are only now able to rise to protest the purported elimination of an essential powers as Issuing Authorities and of essential features of our franchise agreements. When has Cambridge given up it right to exercise its powers, any of them, but most especially its right to act in the public interest of its citizens. Never.

1. Cambridge explicitly retained in its franchise license the right to consider matters of public interest. The Cambridge License, sec 2.2(d) provides ...

2. Regulation 4.04 Should Not Be Applied Retroactively. Salem v. Warner Amex Cable, 392 Mass. 663 (1984); law in existence at time of agreement becomes part of agreement, see Feakes v. Bozyczko, 373 mass 633, 636 (1977)

Statute says only that issuing authorities may not withhold on grounds "arbitrary or unreasonable" m.g.l. c.166A,sec 7

412 mass at 346, 426 mass 541

An out rage that DTE would attempt to denude issuing authorities of the power to deal with compliance issues in connection with transfers. As we believe every city manager and selectman who wrestles with corporate giants over compliance issues would tell you, transfer events provide leverage. Why should an issuing authority exercise affirmative power at the behest of an applicant who is not in compliance with its existing license obligations? Where does DTE, under the guise of its power to issue "regulations" find authority to take such power out of our hands? Such a position by the DTE seems to indicate that it is totally dominated by cable industry interests, and not serving the needs and concerns of the Commonwealth's cities and towns.

clearly what has been a structure built on a bifurcation between cable and telecommunications is transforming to a new identity, Internet, subsuming both. It is not and should not be a foregone conclusion that local control should simply be swept away.

...

1. Management (we will get help on this on Monday)

Federal lw authorizes an issuing authority to protect competition, 47 USC 533(d)(2)

Something has changed, to be sure. When we granted this franchise we saw it as in the public interest. One might say that technology has changed the landscape so that what we granted long ago without serious risk to our community and for what we saw as considerable gain now poses a different balance, against the public interest. An entitlement we gave to community television to discriminate among providers is now to blossom as a constriction point on the Internet. No longer is "cable television" the product transmitted under out license. The product is Internet, a new phenomenon which we hold in wonder and awe. We believe public interest is served by open architecture in the net.