Broward County has yielded on the open-access issue and settled with AT&T Broadband and Comcast Corp rather than going to 11th U.S. Circuit Court of Appeals April 18 in Atlanta.
The county's Board of Commissioners approved a settlement with the cable operators on the issue April 10 and attorneys are drafting a repealing ordinance now, said Anitra Lanczi, assistant county attorney. That ordinance will be subject to a public hearing and vote in May, she added.
The county initially intended to appeal the ruling of Judge Donald Middlebrooks of U.S. District Court for South Florida. He ruled in November 2000 that the county's July 1999 open-access ordinance abused the operators' First Amendment rights.
The county took up the issue at the urging of the telephone company, then known as GTE Corp., which drafted the ordinance eventually approved by the board of commissioners. The telco also offered to indemnify the county, paying the regulators' bills when the open-access regulation was challenged.
Middlebrooks took notice of the telco's participation in policy-making, saying the county was influenced by the company's effort to eliminate or hamper potential competitors.
"Attorneys felt our position was strong, but appeals are time-consuming and distracting," Lanczi said of the county's decision to settle without an appeal. She also said litigants never know how a challenge on this issue will turn out.
Regulators so far have lost the three court challenges to open access, all for different reasons. The 9th Circuit Court of Appeals, in the case of Portland v. AT&T Corp., called Internet service a telecommunications product, and ruled regulators have no authority.
In an appeal still pending before the 4th Circuit Court of Appeals, judging the legality of an open-access ordinance in Henrico County, Va., the lower court called Internet a cable service. The judge in that case, Richard Williams, determined that open access violates federal telecommunications law.
Middlebrooks was the only jurist to accept cable's constitutional arguments against open access.
Sources said the settlement was brokered between the county and the cable operators. Representatives of the telco were not at the table.
While the county agreed to drop the appeal and rescind the ordinance, the operators agreed to abandon attempts to collect attorneys' fees, AT&T spokeswoman Claudia Jones confirmed.
"Litigation was very time consuming," Jones said. "Our time is better served in going forward and delivering services our customers deserve."
The settlement does not impact any other "commitments, duties or obligations" of the operators per their franchise agreements. Further, the operators must comply with federal and state law or policies that relate to access to their data platforms, according to the agreement.
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