“The first thing we do, let’s kill all the lawyers.” Shakespeare gave these words to Dick the Butcher in Henry VI Part 2, by far the most famous words from one of Shakespeare’s very early and least distinguished plays. While the scene has slapstick elements (it is the second scene of Act IV if you want to read it), Dick, not the brightest bulb, is part of a conspiracy to depose the King that led in time to many deaths. It is hard to resist a sense of irony, that lawyers in some ways uphold the kingdom and the law. We find ourselves in a similar position. We have had to retain lawyers to uphold the law. We even find ourselves needing lawyers to propose some new laws.
The old law in question is Connecticut statute 16-233 which gives municipalities the right to a foot of vertical space on any utility pole “for any purpose” without paying a pole fee. This seems a fair bargain given that municipalities in Connecticut, unlike most other states, do not charge pole owners for use of the public right of way, providing pole owners a subsidy in a sense. However, under prompting by Frontier who with Eversource owns the poles in Connecticut, our state Public Utilities Regulatory Authority (PURA) ruled last May that “for any purpose” did not include broadband to residences and businesses. (Actually, PURA ruled something a bit different, namely, that if municipalities exercised their rights under 16-233 they would be creating an unfair playing field and stifle competition. Don’t laugh. That is the essential PURA position.) Three Connecticut groups have sued PURA over the ruling. (You may read more about the decision and its progress through the courts here.)
While regrettable in the ways litigation is always regrettable, the experience has exposed certain difficulties with the law itself relative to our project. We need some adjustment to our laws. Connecticut has no experience with municipalities attempting residential broadband networks. It would be unusual then for the state’s laws to have precisely understood and completely enabled municipal broadband. The problem is that Connecticut law does not prohibit the full set of institutions and rules municipal broadband will need, but neither does it explicitly authorize them. Without clear and explicit authority, any effort at municipal broadband is vulnerable to attacks by incumbent carriers, attacks we have already experienced and can be all but certain will continue.
The bones in the law are there; they just need tweaking in a few areas.