ATT v CITY OF PORTLAND, 9935609
U.S. 9th Circuit Court of Appeals
ATT v CITY OF PORTLAND
9935609
AT&T CORPORATION; TCI
CABLEVISION OF OREGON,
INCORPORATED; TCIOF SOUTHERN
WASHINGTON,
Plaintiffs-Appellants,
and
TELE-COMMUNICATIONS, INC.,
Plaintiff,
and
No. 99-35609
US WEST INTERPRISE AMERICA,
INC.; OREGON INTERNET SERVICE D.C. No.
PROVIDER ASSOCIATION; OGC CV-99-00065-OMP
TELECOMM, LTD., dba Integra
OPINION
Telecom,
Intervenors,
v.
CITY OF PORTLAND; MULTNOMAH
COUNTY,
Defendants-Appellees.
GTE INTERNETWORKING, INC.,
Intervenor.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
November 1, 1999--Portland, Oregon
Filed June 22, 2000
Before: Edward Leavy, Ferdinand F. Fernandez and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
_________________________________________________________________
COUNSEL
David W. Carpenter (argued), Sidley & Austin, Chicago, Illi-
nois, for plaintiffs-appellants AT&T Corp., Telecommunica-
tions, Inc., TCI Cablevision of Oregon, Inc., and TCI of
Southern Washington.
Terence L. Thatcher (argued), Deputy City Attorney, Port-
land, Oregon; Joseph Van Eaton, Miller & Van Eaton, Wash-
ington, D.C., for defendants-appellees City of Portland and
Multnomah County.
William T. Lake (argued) and William R. Richardson, Jr.,
Wilmer, Cutler & Pickering, Washington, D.C., for
intervenors-appellees US WEST Interprise America, Inc.,
GTE Internetworking Inc., and OGC Telecomm, Ltd.
Janis C. Kestenbaum, Jenner & Block, Washington, D.C., for
intervenor-appellee Oregon Internet Service Providers Asso-
ciation.
David J. Newburger, Newburger & Vossmeyer, St. Louis,
Missouri, for amici curiae American Council of the Blind,
Missouri Association of the Deaf, Missouri Council of the
Blind, Oklahoma Able Tech, Paraquad, Inc., and National Sil-
ver Haired Congress.
Howard J. Symons, Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, Washington, D.C., for amicus curiae At Home Corp.
Robert C. Fellmeth, University of San Diego School of Law,
San Diego, California, for amicus curiae Center for Public
Interest Law.
Bruce J. Wecker, Furth, Fahrner & Mason, San Francisco,
California, for amici curiae Citizens' Utility Board of Oregon,
Consumer Action, Consumer Federation of America, The
Utility Reform Network, and Utility Consumers' Action Net-
work.
James M. Carr, Office of General Counsel, Washington, D.C.,
for amicus curiae Federal Communications Commission.
Christopher Wolf, Proskauer Rose, Washington, D.C., for
amicus curiae Hands Off the Internet.
Bruce D. Sokler, Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, Washington, D.C., for amicus curiae National Cable
Television Association, California Cable Television Associa-
tion, Oregon Cable Telecommunications Association, and
Washington State Cable Communications Association.
Paul Mogin, Williams & Connolly, Washington, D.C., for
amicus curiae openNET Coalition.
Jayne Chong-Soon Lee, Office of City Attorney, San Fran-
cisco, California, for amici curiae U.S. Conference of Mayors,
National Association of Counties, National League of Cities,
National Association of Telecommunications Officers and
Administrators, Jefferson County, King County, Montgomery
County, Michigan Coalition to Protect Public Rights of Way
from Telecommunications Encroachments, Sacramento Met-
ropolitan Cable Television Commission, San Mateo County
Telecommunications Authority, Bell-Cudahy Cable Televi-
sion Authority, and the Cities of Arvada, Atlanta, Baltimore,
Boston, Dearborn, Los Angeles, New York, Rancho Palos
Verdes, San Diego, San Francisco, San Jose, and Walnut
Creek.
_________________________________________________________________
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether a local cable
franchising authority may condition a transfer of a cable fran-
chise upon the cable operator's grant of unrestricted access to
its cable broadband transmission facilities for Internet service
providers other than the operator's proprietary service. We
conclude that the Communications Act prohibits a franchising
authority from doing so and reverse the judgment of the dis-
trict court.
I
Distilled to its essence, this is a struggle for control over
access to cable broadband technology. In broadband data
transmission, a single medium carries multiple communica-
tions at high transmission speeds. The allure of broadband
technology is that it allows users to access the Internet at
speeds fifty to several hundred times faster than those avail-
able through conventional computer modems connected to
what is commonly referenced in the telecommunications
industry as "plain old telephone service." Broadband allows
transmission, or "streaming," of live video and audio commu-
nications, as well as video and audio data files. To satisfy
consumer demand for broadband Internet access, cable televi-
sion operators have replaced coaxial wires with fiber-optic
cable, telephone companies have initiated high-frequency dig-
ital subscriber line ("DSL") services over standard twisted-
pair copper wires, fixed wireless providers have upgraded
their microwave transmission capacities, satellite providers
have launched global two-way digital networks, and research-
ers have explored the use of quantum communication meth-
ods.
The race to acquire broadband transmission systems has, in
part, prompted a number of corporate mergers. This appeal
concerns the merger between AT&T, at the time the nation's
largest long distance telephone provider, and Telecommunica-
tions, Inc. ("TCI"), one of the nation's largest cable television
operators. In addition to providing traditional cable television
programming, TCI provided cable broadband Internet access
to consumers in certain geographic areas. Since acquiring
TCI, AT&T has continued to offer cable broadband access as
part of its "@Home" service, which bundles its cable conduit
with Excite, an Internet service provider ("ISP") under an
exclusive contract. Like many other ISPs, @Home supple-
ments its Internet access with user e-mail accounts and a Web
portal site, a default home page gateway offering Internet
search capabilities and proprietary content devoted to chat
groups, interactive gaming, shopping, finance, news, and
other topics. @Home subscribers also may "click-through" to
other free Web portal sites, and may access other Internet ser-
vice providers if they are willing to pay for an additional ISP;
however, subscribers cannot purchase cable broadband access
separately from an unaffiliated ISP, and have no choice over
terms of Internet service such as content and bandwidth
restrictions.
The @Home cable broadband infrastructure differs from
that of most ISPs. A typical ISP connects with the Internet via
leased telecommuncations lines, which its consumers access
through "dial-up" connections over ordinary telephone lines.
@Home operates a proprietary national "backbone, " a high-
speed network parallel to the networks carrying most Internet
traffic, which connects to those other Internet conduits at mul-
tiple network access points. This backbone serves regional
data hubs which manage the network and deliver Excite's
online content and services, including multimedia content that
exploits broadband transmission speeds. Each hub connects to
local "headend" facilities, cable system transmission plants
that receive and deliver programming, where "proxy" servers
cache frequently requested Internet data, such as Web sites,
for local delivery. Each headend connects to cable nodes in
neighborhoods, each of which in turn connects via coaxial
cable to the user's cable modem and computer.
To effect the merger, AT&T and TCI sought three types of
regulatory approval. The Department of Justice approved the
merger on antitrust grounds, subject to TCI's divestiture of its
interest in Sprint PCS wireless services. See United States v.
AT&T Corp. and Tele-Communications Inc., No. CIV. 98
CV03170, 1999 WL 1211462 (D.D.C. Aug. 23, 1999) (final
judgment). The Federal Communications Commission
("FCC") approved the transfer of federal licenses from TCI to
AT&T, after addressing public interest concerns in four ser-
vice areas, including residential Internet access. See Applica-
tion for Consent to the Transfer of Licenses and Section 214
Authorizations from TCI to AT&T, 14 F.C.C.R. 3160 (1999)
("Transfer Order").
One of the issues that the FCC considered forms the under-
current of the present controversy: whether to impose a
requirement of open access to cable broadband facilities. A
variety of interest groups and competitors argued that allow-
ing AT&T to restrict cable broadband access to the propri-
etary @Home service would harm competition and reduce
consumer choice. In its order approving the license transfer,
the FCC rejected any open access condition, citing the emer-
gence of competing methods of high-speed Internet access,
and @Home customers' "ability to access the Internet content
or portal of his or her choice." It found "that the equal access
issues raised by parties to this proceeding do not provide a
basis for conditioning, denying, or designating for hearing any
of the requested transfers of licenses and authorizations."
Transfer Order at P 96. The FCC concluded that "while the
merger is unlikely to yield anti-competitive effects, we
believe it may yield public interest benefits to consumers in
the form of a quicker roll-out of high-speed Internet access
services." Transfer Order at P 94.
The last regulatory hurdle that AT&T and TCI faced was
the approval of local franchising authorities where required by
local franchising agreements. See 47 U.S.C.S 537 (permitting
franchising authority approval of cable system sales when the
franchise agreement so requires). TCI's franchises with Port-
land and Multnomah County (collectively, "Portland") per-
mitted the city to "condition any Transfer upon such
conditions, related to the technical, legal, and financial quali-
fications of the prospective party to perform according to the
terms of the Franchise, as it deems appropriate. " This lan-
guage parallels the text of 47 U.S.C. S 541(a)(4)(C), which
describes the conditions a locality may impose on a franchise.
Portland referred the transfer application for recommenda-
tion by the Mount Hood Cable Regulatory Commission, an
intergovernmental agency overseeing cable affairs in the Port-
land region. In response to Portland's preliminary questions,
AT&T confirmed that TCI was in the process of upgrading its
cable system to support @Home over cable broadband, and
maintained that @Home was a proprietary product "not sub-
ject to common carrier obligations." At public hearings, the
incumbent local telephone exchange carrier US WEST and
the Oregon Internet Service Providers Association called for
open access to TCI's cable broadband network, citing--in
addition to consumer welfare--the need for "a level playing
field" with US WEST's common carrier obligations and a
"very real potential that consumer [Internet ] access businesses
could go out of business." The Mount Hood Commission rec-
ommended that the city and county approve the transfer of
franchise control subject to an open access requirement.
On December 17, 1998, Portland and Multnomah County
voted to approve the transfer, subject to an open access condi-
tion expressed in a written acceptance:
Non-discriminatory access to cable modem platform.
Transferee shall provide, and cause the Franchisees
to provide, non-discriminatory access to the Fran-
chisees' cable modem platform for providers of
Internet and on-line services, whether or not such
providers are affiliated with the Transferee or the
Franchisees, unless otherwise required by applicable
law. So long as cable modem services are deemed to
be "cable services," as provided under Title VI of the
Communications Act of 1934, as amended, Trans-
feree and the Franchisees shall comply with all
requirements regarding such services, including but
not limited to, the inclusion of revenues from cable
modem services and access within the gross reve-
nues of the Franchisees' cable franchises, and com-
mercial leased access requirements.
AT&T refused the condition, which resulted in a denial of the
request to transfer the franchises. AT&T then brought this
action, seeking declarations that the open access condition
violated the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56 (1996), codified at 47 U.S.C. S 151, et seq. (collec-
tively, the "Communications Act"), the franchise agreements,
and the Constitution's Commerce Clause, Contract Clause,
and First Amendment. The district court rejected all of
AT&T's claims and granted summary judgment to Portland.
See AT&T Corp. v. City of Portland, 43 F. Supp.2d 1146 (D.
Or. 1999). We review de novo a grant of summary judgment;
there being no disputed factual issues, we face only a question
of statutory interpretation. See Fort Belknap Indian Commu-
nity v. Mazurek, 43 F.3d 428, 432 (9th Cir. 1994).
II
The parties, and numerous amici, forcefully urge us to con-
sider what our national policy should be concerning open
access to the Internet. However, that is not our task, and in
our quicksilver technological environment it doubtless would
be an idle exercise. The history of the Internet is a chronicle
of innovation by improvisation, from its genesis as a national
defense research network, to a medium of academic
exchange, to a hacker cyber-subculture, to the commercial
engine for the so-called "New Economy." Like Heraclitus at
the river, we address the Internet aware that courts are ill-
suited to fix its flow; instead, we draw our bearings from the
legal landscape, and chart a course by the law's words. To
that end, "we look first to the plain language of the statute,
construing the provisions of the entire law, including its
object and policy." United States v. Mohrbacher, 182 F.3d
1041, 1048 (9th Cir. 1999) (citation omitted). We note at the
outset that the FCC has declined, both in its regulatory capac-
ity and as amicus curiae, to address the issue before us. Thus,
we are not presented with a case involving potential deference
to an administrative agency's statutory construction pursuant
to the Chevron doctrine. See Food and Drug Administration
v. Brown & Williamson Tobacco Corp., 120 S.Ct. 1291,
1300-01 (2000).
A
Because Portland premised its open access condition on its
position that @Home is a "cable service" governed by the
franchise, we begin with the question of whether the @Home
service truly is a "cable service" as Congress defined it in the
Communications Act. We conclude that it is not.
[1] Subject to limited exceptions, the Communications Act
provides that "a cable operator may not provide cable service
without a franchise." 47 U.S.C. S 541(b)(1). The Act defines
"cable service" as "(A) the one-way transmission to subscrib-
ers of (i) video programming, or (ii) other programming ser-
vice, and (B) subscriber interaction, if any, which is required
for the selection or use of such video programming or other
programming service." 47 U.S.C. S 522(6). For the purposes
of this definition, "video programming" means "programming
provided by, or generally considered comparable to program-
ming provided by, a television broadcast station, " 47 U.S.C.
S 522(20), and "other programming service " means "informa-
tion that a cable operator makes available to all subscribers
generally." 47 U.S.C. S 522(14). The essence of cable service,
therefore, is one-way transmission of programming to sub-
scribers generally.
[2] This definition does not fit @Home. Internet access is
not one-way and general, but interactive and individual
beyond the "subscriber interaction" contemplated by the stat-
ute. Accessing Web pages, navigating the Web's hypertext
links, corresponding via e-mail, and participating in live chat
groups involve two-way communication and information
exchange unmatched by the act of electing to receive a one-
way transmission of cable or pay-per-view television pro-
gramming. And unlike transmission of a cable television sig-
nal, communication with a Web site involves a series of
connections involving two-way information exchange and
storage, even when a user views seemingly static content.
Thus, the communication concepts are distinct in both a prac-
tical and a technical sense. Surfing cable channels is one
thing; surfing the Internet over a cable broadband connection
is quite another.
Further, applying the carefully tailored scheme of cable
television regulation to cable broadband Internet access would
lead to absurd results, inconsistent with the statutory structure.
For example, cable operators like AT&T may be required by
a franchising authority to set aside cable channels for public,
educational or governmental use, see 47 U.S.C. S 531, must
designate some of their channels for commercial use by per-
sons unaffiliated with the operator, see 47 U.S.C. S 532, and
must carry the signals of local commercial and non-
commercial educational television stations, see 47 U.S.C.
SS 534 & 535. We cannot rationally apply these cable televi-
sion regulations to a non-broadcast interactive medium such
as the Internet. As our sister circuit concluded in the context
of the abortive "video dialtone" common carrier television
technology, regulating @Home as a cable service "simply
makes no sense in any respect, and would be infeasible in
many respects." National Cable Television Ass'n. v. FCC, 33
F.3d 66, 75 (D.C. Cir. 1994).
[3] Thus, because the Internet services AT&T provides
through @Home cable modem access are not "cable services"
under the Communications Act, Portland may not directly
regulate them through its franchising authority.
B
Although we conclude that a cable operator may provide
cable broadband Internet access without a cable service fran-
chise, we must also determine whether Portland may condi-
tion AT&T's provision of standard cable service upon its
opening access to the cable broadband network for competing
ISPs. To do so, we must determine how the Communications
Act defines @Home.
[4] Under the statute, Internet access for most users consists
of two separate services. A conventional dial-up ISP provides
its subscribers access to the Internet at a "point of presence"
assigned a unique Internet address, to which the subscribers
connect through telephone lines. The telephone service link-
ing the user and the ISP is classic "telecommunications,"
which the Communications Act defines as "the transmission,
between or among points specified by the user, of information
of the user's choosing, without change in the form or content
of the information as sent and received." 47 U.S.C. S 153(43).
A provider of telecommunications services is a "telecommu-
nications carrier," which the Act treats as a common carrier
to the extent that it provides telecommunications to the public,
"regardless of the facilities used." 47 U.S.C.S 153(44) &
(46).
[5] By contrast, the FCC considers ISP itself as providing
"information services" under the Act, defined as "the offering
of a capability for generating, acquiring, storing, transform-
ing, processing, retrieving, utilizing, or making available
information via telecommunications." 47 U.S.C.S 153(20)
(1996). As the definition suggests, ISPs are themselves users
of telecommunications when they lease lines to transport data
on their own networks and beyond on the Internet backbone.
However, in relation to their subscribers, who are the "public"
in terms of the statutory definition of telecommunications ser-
vice, they provide "information services," and therefore are
not subject to regulation as telecommunications carriers. See
Federal-State Joint Board on Universal Service, 13 F.C.C.R.
11501, PP BM, CB (1998) (report to Congress); cf. Child
Online Protection Act, Pub. L. No. 105-277, S 1403(e)(4),
112 Stat. 2681 (1998) (codified at 47 U.S.C. S 231(e)(4)) &
Internet Tax Freedom Act, Pub. L. No. 105-277, S 1101(e),
112 Stat. 2681 (1998) (reproduced at note to 47 U.S.C.
S 151(e) (1998)) (defining Internet access services as: "a ser-
vice that enables users to access content, information, elec-
tronic mail, or other services offered over the Internet, and
may also include access to proprietary content, information,
and other services as part of a package of services offered to
consumers. Such term does not include telecommunications
services."). Indeed, "information services"--the codified term
for what the FCC first called "enhanced services"--have
never been subject to regulation under the Communications
Act. See Howard v. America Online, Inc., 208 F.3d 741, 752-
53 (9th Cir. 2000); see also 47 C.F.R. S 64.702(a); California
v. FCC, 905 F.2d 1217, 1223-25 (9th Cir. 1990) (discussing
history of "enhanced services" non-regulation).
[6] Like other ISPs, @Home consists of two elements: a
"pipeline" (cable broadband instead of telephone lines), and
the Internet service transmitted through that pipeline. How-
ever, unlike other ISPs, @Home controls all of the transmis-
sion facilities between its subscribers and the Internet. To the
extent @Home is a conventional ISP, its activities are one of
an information service. However, to the extent that @Home
provides its subscribers Internet transmission over its cable
broadband facility, it is providing a telecommunications ser-
vice as defined in the Communications Act.
[7] Under this taxonomy, the Communications Act bars
Portland from conditioning the franchise transfer upon
AT&T's provision of the @Home transmission element that
constitutes telecommunications:
(3)(A) If a cable operator or affiliate thereof is
engaged in the provision of telecommunications
services--
(i) such cable operator or affiliate shall
not be required to obtain a franchise under
this title for the provision of telecommuni-
cations services; and
(ii) the provisions of this title shall not
apply to such cable operator or affiliate for
the provision of telecommunications ser-
vices.
(B) A franchising authority may not impose any
requirement under this title that has the purpose or
effect of prohibiting, limiting, restricting, or condi-
tioning the provision of a telecommunications ser-
vice by a cable operator or an affiliate thereof.
(C) A franchising authority may not order a cable
operator or affiliate thereof--
(i) to discontinue the provision of a tele-
communications service, or
(ii) to discontinue the operation of a
cable system, to the extent such cable sys-
tem is used for the provision of a telecom-
munications service, by reason of the
failure of such cable operator or affiliate
thereof to obtain a franchise or franchise
renewal under this title with respect to the
provision of such telecommunications ser-
vice.
(D) Except as otherwise permitted by sections 611
and 612, a franchising authority may not require a
cable operator to provide any telecommunications
service or facilities, other than institutional networks,
as a condition of the initial grant of a franchise, a
franchise renewal, or a transfer of a franchise.
Pub. L. No. 104-104, S 303(a), 110 Stat. 56, 124-25 (1996),
codified at 47 U.S.C. S 541(b)(3); see also S 101(a), 110 Stat.
at 70, codified at 47 U.S.C. S 253(a) ("No State or local stat-
ute or regulation, or other State or local legal requirement,
may prohibit or have the effect of prohibiting the ability of
any entity to provide any interstate or intrastate telecommuni-
cations service."). Subsection 541(b)(3) expresses both an
awareness that cable operators could provide telecommunica-
tions services, and an intention that those telecommunications
services be regulated as such, rather than as cable services.
[8] The Communications Act includes cable broadband
transmission as one of the "telecommunications services" a
cable operator may provide over its cable system. Thus,
AT&T need not obtain a franchise to offer cable broadband,
see 47 U.S.C. S 541(b)(3)(A); Portland may not impose any
requirement that has "the purpose or effect of prohibiting,
limiting, restricting or conditioning" AT&T's provision of
cable broadband, see 47 U.S.C. S 541(b)(3)(B); Portland may
not order AT&T to discontinue cable broadband, see 47
U.S.C. S 541(b)(3)(C); and Portland may not require AT&T
to provide cable broadband as a condition of the franchise
transfer, see 47 U.S.C. S 541(b)(3)(D). Therefore, under the
several provisions of S 541(b)(3), Portland may not regulate
AT&T's provision of @Home in its capacity as a franchising
authority, and the open access condition contained in the fran-
chise transfer agreement is void.
C
Beyond the domain of cable-specific regulation, the defini-
tion of cable broadband as a telecommunications service
coheres with the overall structure of the Communications Act
as amended by the Telecommunications Act of 1996, and the
FCC's existing regulatory regime. Elsewhere, the Communi-
cations Act contemplates the provision of telecommunications
services by cable operators over cable systems. See, e.g., 47
U.S.C. S 224(d)(3) (authorizing FCC utility pole attachment
rate-setting "for any pole attachment used by a cable system
. . . to provide any telecommunications service."). In the Tele-
communications Act, Congress defined advanced telecommu-
nications capability "without regard to any transmission
media or technology," in terms that describe cable broadband:
"high-speed, switched, broadband telecommunications capa-
bility that enables users to originate and receive high-quality
voice, data, graphics, and video telecommunications using
any technology." Pub. L. 104-104, S 706(c)(1), 110 Stat. 56,
153 (1996) (reproduced at note under 47 U.S.C. S 157). Con-
sistent with our view, the FCC regulates DSL service, a high-
speed competitor to cable broadband, as an advanced tele-
communications service subject to common carrier obliga-
tions. See GTE Operating Companies Tariff No. 1 , 13
F.C.C.R. 22466 (1998).
Among its broad reforms, the Telecommunications Act of
1996 enacted a competitive principle embodied by the dual
duties of nondiscrimination and interconnection. See 47
U.S.C. S 201(a) ("It shall be the duty of every common carrier
engaged in interstate or foreign communication by wire or
radio to furnish such communication service upon reasonable
request therefor"); 47 U.S.C. S 251(a)(1) ("Each telecommu-
nications carrier has the duty . . . to interconnect directly or
indirectly with the facilities and equipment of other telecom-
munications carriers"). Together, these provisions mandate a
network architecture that prioritizes consumer choice, demon-
strated by vigorous competition among telecommunications
carriers. As applied to the Internet, Portland calls it "open
access," while AT&T dysphemizes it as "forced access."
Under the Communications Act, this principle of telecommu-
nications common carriage governs cable broadband as it
does other means of Internet transmission such as telephone
service and DSL, "regardless of the facilities used." 47 U.S.C.
S 153(46). The Internet's protocols themselves manifest a
related principle called "end-to-end": control lies at the ends
of the network where the users are, leaving a simple network
that is neutral with respect to the data it transmits, like any
common carrier. On this rule of the Internet, the codes of the
legislator and the programmer agree.
[9] Thus far, the FCC has not subjected cable broadband to
any regulation, including common carrier telecommunications
regulation. We note that the FCC has broad authority to for-
bear from enforcing the telecommunications provisions if it
determines that such action is unnecessary to prevent discrim-
ination and protect consumers, and is consistent with the pub-
lic interest. See 47 U.S.C. S 160(a). Congress has reposed the
details of telecommunications policy in the FCC, and we will
not impinge on its authority over these matters.
III
We hold that subsection 541(b)(3) prohibits a franchising
authority from regulating cable broadband Internet access,
because the transmission of Internet service to subscribers
over cable broadband facilities is a telecommunications ser-
vice under the Communications Act. Therefore, Portland may
not condition the transfer of the cable franchise on non-
discriminatory access to AT&T's cable broadband network.
We need not reach AT&T's other statutory and constitutional
arguments.
REVERSED.