April 2000
Cable, Internet Access and the Commonwealth: Evaluating The Ballot Initiative's Impact on Government and Consumers
By Stuart N. Brotman

ENDNOTES

¹ A Law To Promote Competition in the Cable-Based Internet Access Market (available at www.massopenaccess.org). The full text of the initiative reads as follows:

In order to promote competition in the cable-based Internet access market, Chapter 166A of the General Laws is hereby amended by inserting after Section 5 the following Section: Section 5A: No city or town in the Commonwealth shall grant a license, renew a license, approve the extension of a license, agree to a substantial modification of a license, or approve the transfer of a license without requiring as a condition thereof that the licensee provide non-discriminatory and equal access to its cable system to any and all Internet Service Provider companies wishing to offer Internet access services to consumers through the utilization of such cable system. "Non-discriminatory and equal access" shall mean that a licensee utilizing its cable system to offer Internet access services within the areas served pursuant to its license, either on its own or in conjunction with one or more other companies, shall make such system in said area available to any and all Internet Service Provider companies at rates, terms, and conditions that are at least as favorable as said licensee provides to itself, any of its affiliates, or any other company. Such rates, terms, and conditions shall be commercially reasonable for the purpose of enabling any and all Internet Service Provider companies wishing to do so to offer cable-based Internet access services to consumers and shall include neither a requirement that an unaffiliated Internet Service Provider company compensate the licensee with an equity interest in the Internet Service Provider company nor a requirement for any other form of non-monetary compensation. The provisions of this statute shall be deemed severable, and if any part of this statute shall be adjudged unconstitutional or invalid, such judgment shall not affect other valid parts thereof.

² In some cases, such as those dealing with cable franchise renewals, there also may be overlapping judicial proceedings due to existing federal law that covers this area. See 47 U.S.C at Section 546.

³ Thomas D. Hopkins, Regulatory Costs in Profile, Center for the Study of American Business, August 1996, at 11, 19.

⁴ Gabriella Mrad, Behold Massachusetts the Unfree, The Boston Herald, June 14, 1999, at 27.

⁵ Id.

⁶ Dale E. Hatfield and David E. Gardner, An Essay on Competition, Innovation and Investment in Telecommunications, The Twelfth Annual Aspen Institute Conference on Telecommunications Policy, August 1997, at 2.

⁷ Id. at 3-4.

⁸ Id. at 4.

⁹ Philip Kotler, Donald H. Haider and Irving Rein, Marketing Places 232 (The Free Press 1993).

¹⁰ Emily Barker, Hot Zones: The Best Cities in America for Starting and Growing a Business, Inc., December 1999, at 67.

¹¹ Id. at 72.

¹² Id. at 73

¹³ The Thirteen Hottest Place on the New High-Tech Map, The Wall Street Journal, November 23, at B12.

¹⁴ Id.

¹⁵ Id. at B1

¹⁶ Federal Trade Commission, Self-Regulation and Privacy Online: A Report to Congress, July 1999, at 1.

¹⁷ Steve Lohr, In E-Commerce Frenzy, Brave New World Meets Old, New York Times, October 10, 1999, at Section 4, page 5 (data from Forrester Research Inc.).

¹⁸ Internet Advertising Bureau, Internet Advertising Revenue Report, 1999, at 1 (available at www.iab.net).

¹⁹ Federal Trade Commission, Self-Regulation and Privacy Online: A Report to Congress, July 1999, at 2 (citing National Consumers League: Consumers and the 21st Century, Louis Harris & Associates, Inc., 1999, at 4).

²⁰ Federal Trade Commission, Self-Regulation and Privacy Online: A Report to Congress, July 1999, at 2.

²¹ Id. at 2.

²² 47 U.S.C.S. at Sections 521-559.

²³ Id. at Section 551(a).

²⁴ Id. at Section 551(b)(c).

²⁵ Federal Trade Commission, Self-Regulation and Privacy Online: A Report to Congress, July 1999, at 3.

²⁶ Barbara Esbin, Associate Bureau Chief, Cable Service Bureau, Internet Over Cable: Defining the Past in Terms of the Future, Federal Communications Commission Office of Plans and Policy Working Paper #30,August 1998, at 108.

²⁷ Andrew Shapiro, The Control Revolution 161 (Public Affairs 1999).

²⁸ Id.

²⁹ Id. at 162 (quoting Professor Oscar Gandy Jr., Annenberg School for Communications, University of Pennsylvania).

³⁰ Id. at 163.

³¹ Michael Dertouzos, Privacy is not Doomed, Technology Review, September/October 1999, at 31.

³² Susan Grant, Vice President for Public Policy, National Consumers League, testimony before the U.S. House Subcommittee on Telecommunications, Trade and Consumer Protection regarding "slamming," June 23, 1998, at 1 (available at www.fraud.org/news/newsset.htm).

³³ Id. at 2.

³⁴ Id.

³⁵ Id. at 3.

³⁶ Id.

³⁷ Id.

³⁸ Id.

³⁹ In the Matter of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996 Policies and Rules Concerning Unauthorized Changes of Consumers' Long Distance Carriers, CC Docket No. 94-12, Second Report and Order and Further Notice of Proposed Rulemaking (released December 23, 1998).

⁴⁰ Id.

⁴¹ General Accounting Office Says Slamming, Cramming on Rise, US West Public Policy Release, August 31, 1999 (available at www.uswest.com/about/policy/docs/083199).

⁴² Gary Meyers, Telephone Scams Are Getting More Involved, The State Journal-Register (Springfield, IL), May 23, 1999, at 60.

⁴³ Federal Communications Consumer Information Factsheet on Cramming (available at www.fcc.gov/Common_Carrier/Factsheets/cramming.html).

⁴⁴ Susan Grant, Vice President for Public Policy, National Consumers League, testimony before the U.S. House Subcommittee on Telecommunications, Trade and Consumer Protection regarding "slamming," June 23, 1998, at 2 (available at www.fraud.org/news/newsset.htm).

⁴⁵ Stuart N. Brotman, Extending Telecommunications Service to Americans with Disabilities, The Annenberg Washington Program Communications Policy Studies, Northwestern University, 1991.

⁴⁶ Massachusetts Assistive Technology Partnership, Welcome from the Director (available at www.matp.org/what_we_do.html).

⁴⁷ National Center for Accessible Media, Who We Are (available at www.wgbh.org/wgbh/pages/ncam/aboutncam.html).

⁴⁸ Hiawatha Bray, AOL Sued by Blind Net Users; They Say Service Does Not Accommodate Their Needs, The Boston Globe, November 5, 1999, at C1.

⁴⁹ AOL Named in Disabilities Act Suit Filed by Blind Users, Computer & Online Litigation Reporter, November 16, 1999, at 7.

⁵⁰ Richard C. Notebaert, The Law of Unintended Consequences, Center for the Study of American Business, CEO Series Issue No. 30, February 1999, at 2.

⁵¹ Id.

⁵² Id. at 2-3.

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