VICTORY

“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 earliest and least distinguished plays. While the scene has slapstick elements, Dick is part of a conspiracy to depose Henry VI that led in time to many deaths (in the play). As Henry VI, who became King at the age of 9 months, lost everything his father famously won in France, the regicide idea is not without dramatic interest. But it is hard to resist a sense of irony, that lawyers uphold the kingdom and the law.

We have found ourselves in a similar position. We have had to retain lawyers to uphold the law. The issue, while not about the kingdom, still resonates, as our contest was also about the prospect of something lost. Communities in Connecticut need the power to construct broadband networks when private carriers do not provide full coverage or the latest technology. That power had been seriously compromised through a kind of usurpation, our Public Utilities Regulatory Authority (PURA) attempting to strip municipalities of the power by squeezing the meaning out of Connecticut Statute §16-233. That statute gives communities the right to install networks “for any purpose” without paying recurring pole fees, a reasonable bargain as communities in Connecticut, unlike most other states, do not charge pole owners for use of the public right of way into which poles are installed. In a ruling issued in May of 2018 PURA attempted to restrict “for any purpose” to “municipal purposes” on grounds that free pole access was an illegal competitive advantage. Towns around Connecticut sued PURA, with the necessary help of attorneys. On 2 December 2019 they won. Communities are now free to install broadband networks on utility poles, a power Frontier and other carriers had hoped to prevent. This is the story. While over in a sense, it carries a message about how our system works and the ways in which carriers attempt to protect their interests when their interest do not converge with community interests.

The 2013 Amendment

Connecticut Statute §16-233 found life originally in 1948, intended to give pole space for community safety networks.  It gave free pole access “for signal wire,” nothing else.  In 1913 Senator Beth Bye shoehorned an amendment into the law that replaced “signal wire” with “for any purpose,” the obvious purpose being to authorize municipalities to construct and own their own commercial broadband networks.  She and other supporters of the idea had been continuously frustrated by a divided state congress that refused to bring such ideas into legislation through normal committee channels.  The language was a rider to a budget bill, a common conveyance for auxiliary, unrelated amendments.

Here is the statute in its entirely:

Sec. 16-233. Use of gain by town, city, borough, fire district or Department of Transportation.  Each town, city, borough, fire district or the Department of Transportation shall have the right to occupy and use for any purpose, without payment therefor, one gain upon each public utility pole or in each underground communications duct system installed by a public service company within the limits of any such town, city, borough or district. The location or relocation of any such gain shall be prescribed by the Public Utilities Regulatory Authority. Any such gain shall be reserved for use by the town, city, borough, fire district or the Department of Transportation. (emphasis added) (A “gain” is one foot of vertical pole space.)

The PURA Process and Decision

Our government has an agency called the Office of Consumer Counsel (OCC), a group of attorneys who protect consumer interests in electricity, gas, water, conservation, and telecommunications.  In a perhaps misguided effort, the office asked PURA to make it very clear that “for any purpose” included commercial broadband networks.  PURA handles such requests by forming a Docket, conducting investigations that may include public hearings, and then issuing a ruling.  In its present form PURA has three commissioners, one of which is assigned to any one docket, and who alone decides on the ruling, the other two having to agree or not dissent, but do so with little knowledge of the exact proceeding, and hence seldom dissent (they have to support each other).  Each docket has 180 days to get something done, or it automatically dies.  The first docket died in just this fashion.

But Frontier apparently warmed to the idea and requested a continuation docket.  With a logic that resembled something from the tea party in Alice in Wonderland, PURA first decided that “for any purpose” was ambiguous based on a lead from Frontier, claiming the last sentence could mean that the gain was reserved only for use by towns, fire district, and DOT (instead of what it obviously means, that the pole authority must reserve the space on the pole for the use of the entities named).  However, in its final ruling issued in May of 2018 PURA found another line, one never discussed in public hearings, that 16-233 violated federal statutes that require non-discriminatory pole access, else markets are compromised and competition stifled.  This was a narrow and very selective reading of the federal law, which also includes requirements for agencies to encourage competition and investment in areas poorly served, exactly what municipal networks would provide in the many areas of Connecticut with only CATV companies offering monopoly broadband services.

The Litigation

Three groups brought suit against the PURA ruling: the Office of Consumer Counsel (OCC) with Manchester, New Haven, and West Hartford; the Connecticut Conference of Municipalities (CCM) representing 100 Connecticut communities; and Sharon as a coattail for Northwest Connect, representing in effect 25 communities in the northwest corner.  We filed in the late summer of 2018.  Briefs (and legal bills) flowed like water from both sides.  Those defending PURA included PURA, Frontier, the Communication Workers of America, and a trade association representing cable television companies.  The contest thus took the form of communities against carriers at the outset.  Oral arguments took place on 14 August of 2019 before Judge Shortall of the Connecticut Appellate Court. Each party (three plaintiffs, two defendants) got half an hour to speak.  During this proceeding the judge seemed contemptuous of the claim that “for any purpose” was ambiguous, or that PURA could assert a claim of competitive advantage without a shred of evidence or discussion of the claim.

Judge Shortall released his ruling in late November 2019.  He basically torched every feature of PURA’s position.  However, his essential ruling was that PURA does not have standing to make this kind of decision as it involves Internet access, whose sole guardian is the federal government under the 1996 Telecommunications Act and subsequent FCC rulings. The judge also took unkindly to PURA’s suggestion that the question was a constitutional one, as PURA is not an agency entitled to make such decisions.  Not content with these dismissive and sufficient arguments, in part to give a subsequent court the full picture, the judge held forth on all the other arguments.  In particular he insisted that “for any purpose” was not ambiguous, and the contention that free pole access constituted a competitive barrier was entirely free of evidence.

The Next Appeal—Not

Judge Shortall explicitly expected a further appeal, as did each of the plaintiffs.  Defendants had 20 days to file notice of appeal.  That time period elapsed on 2 December 2019 without a single notice.  Shocked, we waited until Thursday of that week to see if a shoe would drop.  None did.  So as of Friday, 6 December, the lawyers for our side declared victory.  The lawsuit cannot be further appealed in state court, and by a rule known as the Rooker-Feldman Doctrine (we all had to look it up) it cannot be appealed to a federal court.

We have no idea why no one appealed.  We can understand PURA’s lagging interest given the lashing they received from the judge.  Frontier has serious business problems (they recently fired their CEO and hired a new one whose background is more in finance than telecommunications).  But we cannot account for cable television companies losing interest.  In any event, municipalities in Connecticut are now free to build out commercial broadband networks with free use of the utility poles.

After Thoughts

There may be conflicts, or at least puzzles, ahead.  The 16-233  statue’s last line reads: “Any such gain shall be reserved for use by the town, city, borough, fire district or the Department of Transportation.”  While awkward in the sense that the sentence has no specific subject, its most obvious meaning is that those who own or administer the poles should reserve a foot of pole space for municipal attachment. Any cursory examination of poles today will reveal that no such space has really been reserved.  When new cables are attached, existing cables often have to be moved around, a process called “make ready.”  It is process that can be expensive.  Who bears the expense?  At times a new cable requires a new pole, particularly in rural areas where a pole may be old and used only for electrical wiring; who pays for that, a much larger expense?  And what happens if a municipality occupies its “gain” and the Department of Transportation then wants to use the same gain, as they have every right to do?

Well, we expect some Connecticut communities will be testing these issues relatively soon.  Stay tuned.

Do NOT follow this link or you will be banned from the site!