In May, Connecticut’s Public Utility Regulatory Agency (PURA) struck a blow at local authority when the ruled that communities could not use their protected utility pole space for municipal fiber deployment. Big cable and telephone companies cheered, broadband advocates and communities that need better connectivity decided to take action. Now, PURA faces lawsuits that challenge the decision from the Office of Consumer Counsel (OCC), the Connecticut Conference of Municipalities (CCM), and at least three local communities that just want high-quality Internet access.
The focus of the controversy is Connecticut’s Municipal Gain Space Law, which was first established in the early 1900s to guarantee municipalities the ability to hang telegraph wires. The municipal gain space is a location on all utility poles — publicly or privately owned — situated in the public right-of-way. After multiple law suits over the years in which cities and the state typically won, Connecticut’s legislature finally amended the language of the law to allow government entities to use the municipal gain space for “any use” in 2013.
Almost two years ago, we reported on the petition filed by the OCC and the State Broadband Office (SBO) with PURA asking for clarification on the law, which included establishing clear-cut rules on using the municipal gain space for fiber optic deployment. They felt the rules needed cleaning up because some incumbents in Connecticut were still finding ways to thwart competition and stop or delay plans for municipal fiber deployment.
In addition to using restrictive pole attachment agreements, incumbents were exploiting the lack of definition in the statute to slow make-ready work, question who pays for make-ready work, and generally delay municipal projects. Time is money and losing momentum can drive up the cost of of a project, which in turn erodes a community's will to see it realized.
The Decision in Question
In addition to the petition that the OCC had filed, Frontier, the Communications Workers of America, and the New England Cable and Telecommunications Association filed a petition asking for a declaratory judgment on whether or not the municipal gain space could be used for fiber optic deployment.
In May, PURA finally released a decision stating that cities could only use the municipal gain space to deploy fiber intent for public purposes. In other words, cities and towns could take advantage of the law if the network they planned to deploy would only serve schools, libraries, and other municipal facilities, but they wanted to offer services to businesses or residents, the municipal gain space was off limits. The prohibition also applies to a situation in which a city may wish to lease infrastructure to a private sector partner.
In May, Elin Swanson Katz from the OCC told Hartford Business:
"We are very disappointed in the decision. It ignores the plain language of the statute, and by deciding that [municipal gain] cannot be used by our cities and towns to provide broadband to those affected by the Digital Divide, denies our municipalities a tool provided by the legislature for just that purpose."
CCM and other advocates for better broadband in the state accused PURA of bending over backwards to justify a result that would help big cable and telecom companies. The sharpest and simplest criticism involves an accusation that PURA’s result "blatantly contorts and violates the plain meaning" of the 2013 update of the law.
At least one State Senator who had worked on the 2013 change contacted PURA and let them know that “for any purpose” was “direct and clear.” Senator Beth Bye wrote, "I worked to make sure it would allow our towns to pursue economic development efforts, using broadband as a tool."
PURA wasn’t convinced, however, and rested their decision on the chance that allowing the municipal gain space for local fiber projects could run afoul of federal law.
"Providing municipal entities free access to the communications gain for the purpose of offering competitive telecommunications services … appears to be inconsistent with these principals and other aspects of federal law.”
The OCC is one of several entities, including municipalities, that considered taking the decision to the courts to seek a reversal. Manchester, West Hartford, and New Haven have all filed suit individually, as has CCM. Manchester wants to develop its own fiber optic infrastructure in order to spur economic development. West Hartford’s Mayor says that their interest lies in using publicly owned infrastructure to bridge the digital divide.
"We're open to ideas and maybe having a relationship with companies that might offer affordable broadband to our residents," said Cantor, who has called telecom opposition to municipal broadband an effort to insulate the industry from competition.
In addition to the argument that PURA did not appropriate follow the plain language interpretation of the 2013 change to the law, CCM argues that PURA should not have considered the municipalities’ intended purpose of the use of the municipal gain space, but only the location and relocation of the use. By taking their consideration too far, CCM argues, they exceeded their authority.
CCM goes on to argue that PURA doesn’t have the jurisdiction over broadband services. After recent FCC rulings, broadband services are once again considered “Title I” services, which puts them out of the reach of PURA. CCM also argues that the petitioners asking for declaratory judgement have no standing in the current case.
"These municipal efforts are of course opposed by major Internet service providers, who don't want the competition. They would rather keep their monopolistic grip on the Internet, and be able to charge exorbitant prices for what is often inadequate speed and poor service."
Read the Municipal Gain Space Statute here.
Read the May 2018 PURA decision here.
Photo credit courtesy of the USDA, public domain.