Let’s Kill All the Lawyers

“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.

1. 16-223 language enabling broadband.

The phrase “for any purpose” must be amended to say explicitly something like “including but not restricted to commercial services over a broadband network connecting residences and businesses.” This was the clear intent of the legislative effort.

2. 16-233 language on multiple pole applicants. 

The law currently entitles three entities to pole access—municipalities, fire districts, and the Department of Transportation. The law is silent on conflicts among them. The Department of Transportation in particular has needs for a fiber-optic network along many roads in the state for roadside sensors, bridge sensors, and traffic control. Given current wire technology the most sensible means of serving all three is through a common cable with multiple strands using the one municipal space rather than three cables, one for each entity (which may not all fit in the same space). The law should be amended in such a way that the first entity to attach a cable to the pole will include strands for the other two in some sensible proportion.

3. 7-213 on electric utilities.

Like Massachusetts, Connecticut enables electric utilities to be in the wire line business. Unlike Massachusetts, Connecticut law does not make it clear what kinds of wire line businesses are appropriate. It may be better for some municipalities to construct its fiber network through a municipal utility. The law needs some revisions to make this outcome clearly authorized by the state.

4. 33-1036 on non-profit corporations.

Communities in Connecticut have very few ways of creating regional entities that can provide regional support or services. Our 911 dispatch services are an example, ones clearly authorized and financed through state and municipal revenues. However, they would never be seen as a competitor in a communications market. This law needs a small revision that would enable a regional entity to represent a collection of municipalities in an arrangement with private parties to provide broadband services over a network with shared ownership. However, there are two area in which entirely new legislation must be considered.

5. A New Law on Pole Make Ready.

The FCC recently ruled that any authorized entity attaching a new cable to a utility pole can move existing cables on the pole around (called “make ready”) themselves rather than require the owners of existing cables to move them around. This saves a lot of time, money, and headaches. However, the FCC ruling does not apply to Connecticut [Why not?]. So Connecticut needs a parallel law that will ease the burden of pole make ready for any entity wanting to install new fiber optic wiring on existing utility poles. [See FCC Make Ready ruling.]

6. Small Cell Antennas for 4G and 5G Mobile

Over the next decade our state, with every other state, is going to be inundated with small cell mobile network antennas and the fiber optic wiring that connects them into back-haul networks. These antennas will be required for 4G enhancements and the next generation mobile network named 5G. They will attach to telephone poles or lamp posts or dedicated antenna structures. The antennas needed for 5G could be as close as 1000 feet apart, meaning ten of thousands of them to blanket the state. [See discussion of small cell antennas.] At present each of the mobile carriers seems to be working in isolation from the others, meaning each will install its own antennas and each will install its own fiber optic wiring. Poles will also be asked to support more fiber optic cables for municipal networks, residential broadband, safety systems, and transportations systems.

There is neither pole space nor weight bearing capacity on most poles today to support the onslaught. The optimum answer to the problem is fiber optic convergence, where one cable serves several purposes and even several vendors, much as roads support many difference purposes with a common resource. However, this is an entirely novel concept in broadband telecommunications, the analogy with roads notwithstanding. We are promoting the idea here that municipalities (or conceivably the state) would own wiring on the poles while private partners own the wiring into homes and home electronics (a nice analogy is the home security market). There are legal knots in this arrangement that are almost certainly beyond the current law in Connecticut. Some serious thought will have to be given to the problem and legislative initiatives to accommodate the desired outcome.

7. Recent FCC Ruling on Small Cell Antenna Attachment

In September of 2018 the FCC issued a Declaratory Ruling that requires municipalities to approve or disapprove any application to install small cell antennas in public right of ways within 90 days. This ruling will be contested, probably all the way to the Supreme Court, as it offends many on the right and the left, and draws support from many on the right and the left. Whatever its eventual outcome, both the state of Connecticut and municipalities within the state need to look seriously at our current laws, regulations, and procedures governing pole attachment and antennas constructed within municipalities. Of particular concern is the ruling’s apparent dismissal of the rights of states who opted in for reverse preemption, particularly regarding pole attachment. Indeed, the ruling seems completely at odds in this sense with a July ruling of the FCC regarding One Touch Make Ready (see section above), which restricts its ruling to the 30 states that did not opt in for reverse preemption.

Stay tuned.

If you have an interest in this business, or questions about any of it, please let us know. We will post updates as they arise. We will be engaged in a legislative initiative over the next few months for which we also need support. Let us know how you feel about it and how you might help. We are not seeking to usurp state power, or kill all the lawyers. But the inadequacies of certain features of the current terrain that motivated Jack Cade and his buddy Dick the Butcher to change out the king are present today in our very state. We hope Shakespeare’s play does not foretell the ending; England lost almost everything under Henry VI. But some urgency needs to be applied to these questions, and your engagement will always help.

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