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The FCC may have closed the book on a novel approach to open access when it ruled that a law to ensure video programming diversity does not grant ISPs the right to lease transport on a cable network.

Internet Ventures Inc. and its Internet On-Ramp ISP subsidiary petitioned the FCC two years ago for access to a cable system in Washington, citing a section of the U.S. Communications Act that requires cable operators offering more than 35 channels to set aside bandwidth for unaffiliated broadcasters.

But the FCC ruled that ISPs can't use this law because they do not provide "content generally considered comparable" to TV.

Don Janke, president of IVI, said the decision was disappointing but not a surprise. "We knew this would be an uphill battle. What can I say? We kissed a frog, and it didn't turn into a prince."

The FCC's decision took a narrow view of what constitutes TV programming, and IVI's intention to offer Internet access and streaming video prevents it from being considered TV. "The commission has previously opined that Congress intended the `video programming' definition to take its meaning from the services offered at the time - 1984 - when the definition was adopted," the commissioners wrote.

But Janke said that TV-like video was at the heart of IVI's efforts to get onto cable broadband networks. "One of my arguments was that we wouldn't even be here at the FCC if it weren't for streaming video, because text and graphics over a 56 kb/s modem works OK. It's the video portion that creates the need for broadband. They said, `It just doesn't look like the quality of TV.' That's a Catch-22, because if you had access to broadband cable, it would have the quality of TV."

The FCC appeared to leave an opening for leased access by a provider that wanted to offer only video programming via the Internet.

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