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Problem With Poles In Connecticut: Petitioning PURA For Precision

In Connecticut, local municipalities want to take advantage of the state’s unique “Municipal Gain Space” but invoking the law has not been hassle-free. As towns try to place fiber-optic cables on this reserved section of utility poles, questions arise that need answering. 

Giving Towns Some Room On The Poles

The Connecticut statute grants state departments and municipalities the right to use space on all of the approximately 900,000 utility poles sitting in the municipal Rights-of-Way (ROW), regardless of ownership. One of the state's electric providers and either Verizon or Frontier jointly own most of the poles.

The law was created in the early 1900s for telegraph wiring and as new technologies and wire types evolved, a number of law suits ensued. Cities and state entities usually won, preserving the space, but the process of getting attachment agreements approved became more burdensome and expensive. In 2013, the state legislature amended the law so municipalities could access to the space “for any use.” The change opened the door for hanging fiber for municipal networks and partnering with private providers.

A Little Help Here...

In theory, it seems simple but in practice, pole administrators - Electric Distribution Companies (EDCs) and telephone companies - and government entities need guidance. As communities across the state band together to improve local connectivity and try to use the law, they have uncovered its flaws. It has potential, but the Municipal Gain Space law needs sharpening to be an effective tool. Its application rules are not sufficiently defined and a number of technical issues are not addressed. 

The state’s Public Utility Regulatory Agency (PURA) has the authority and responsibility to establish rules to settle the problems with the law. Deploying a municipal network is no small task; the Office of Consumer Counsel (OCC) and the State Broadband Office (SBO) hope to simplify the process for local communities. They have petitioned PURA to clarify the Municipal Gain Space rules. In their formal petition, they ask PURA to investigate and remove barriers that interfere with the “timely and efficient use of Municipal Gain.” Read the petition at the PURA website.

Lack Of Direction Jeopardizes Local Projects

We spoke with Elin Swanson Katz, Consumer Counsel, and Joseph Rosenthal, Principal Attorney from the OCC. Bill Vallee, the state's Broadband Policy and Program Coordinator joined the conversation. They described how a lack of direction for pole administrators and other gaps in the Municipal Gain Space law negatively impacts deployment for municipalities that decide to employ it. From inception to implementation, communities find themselves confronting some common questions.

A city may decide to invest in a project and use the Municipal Gain Space law to determine a route for their fiber-optic network cables.  As they move forward, they find that there are a number of unresolved questions, beginning with where on the pole the Municipal Gain Space should be located. Often the other entities that are using the poles have not reserved space for a municipality’s unrestricted use.

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Once they answer the important issue of where on a pole a cable belongs, the next question is who pays to rearrange the existing wires so the new cable can be attached? For example, if a telephone company hung its wire but failed to reserve the space for the town to use later, who should pay for the make-ready costs when the town decides to use its statutory space under the Municipal Gain Space rule? How should make-ready costs, which can make or break a municipal fiber project, be allocated?

Time is critical; that holds true in the telecommunications industry in a number of ways. New rules would also establish who would be responsible for assessing the condition of the poles to expedite projects that depend on pole availability. Scheduling trucks and technicians from the various entities using the poles, fragile financing schedules, deployment delays that cause subscription losses, are only a few factors impacted by timing that affect the viability of a public or private network.

Limiting Competition With “An Offer You Can’t Refuse”

As communities have moved forward with fiber projects, some have entered into agreements with pole owners whose draft pole attachment agreements dictate the terms. Local communities may feel they have little choice, especially if they depend on critical funding tied to a tight deadline.

Some pole attachment agreements violate the law because it includes language that restricts municipalities’ use of the Municipal Gain Space. By limiting the space to “government use,” pole owners are able to prevent partnerships between municipalities and other Internet Service Providers (ISPs) who may wish to provide services to businesses or residents via publicly owned infrastructure. Such a restriction eliminates a range of options for local communities who may not have the ability to operate and maintain a fiber network alone. Incumbent providers are using their pole attachment agreements to stifle and delay municipal networks, including those that involve private partners, as a way to limit competition.

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Local communities must go out of their way to avoid these restrictive agreements if they want to preserve their ability to one day use their fiber for something other than a "government use."

For example, Somers had been awarded state funding to connect to the state education network but refused to sign the pole attachment agreement from Frontier. The resulting delay almost caused them to lose the state grant and they eventually engineered the network to avoid Frontier poles so they would not have to restrict away their Municipal Gain Space.

As part of the petition, the OCC and SBO are asking PURA to develop rules that could be used to build a standard agreement between municipalities and the telecommunications companies or EDCs that own the poles.

Washing Away The Mud For Everyone

In their June 21st news release, the OCC emphasized that the Municipal Gain Space rules affect a number of entities:

Other interested stakeholders in a PURA proceeding regarding the municipal gain would likely include the Single Pole Administrators (the two Electric Distribution Companies), the incumbent telephone companies, the several cable operators, long-term infrastructure investors, the diverse set of utilities, municipalities, investors, other entities that already engage in pole attachments, and Connecticut business and technology promotion groups seeking high-speed internet access.

"The process is daunting and in some circumstances clear as mud...That whole process needs to be clarified," Katz told the Hartford Courant in June. If PURA agrees, the Municipal Gain Space may soon be sharpened and ready to break new ground for Connecticut communities.

Missouri HB 2078 Fails: Post Mortem Play-By-Play

Since we alerted our audience to the shenanigans surrounding Missouri’s HB 2078, a couple of other news medias have picked up the story and reported on the dramatic end of session climax. As we rest in the glow of the denouement, we want to provide a follow up for those who may have missed the final outcome and offer some words from Jim Baller, who was deep in the trenches.

Here's What Happened...

If you have not yet heard, the language from HB 2078 was ultimately not adopted by the Missouri State Legislature. Whew. Readers probably recall that, when HB 2078 stalled on its own, the author of HB 2078, Rep. Lyndall Fraker slipped some of the more damaging language into SB 765, a traffic ticket bill that had nothing to do with municipal networks.

Fortunately, advocates of municipal networks had been able to educate Members who were part of the appropriate conference committee. Those elected officials decided to remove the language from SB 765 before final passage. Anti-muni Members also attempted to amend the language into a third bill, HB 1912, which concerned county buildings. The sponsor of the amendment then turned around and chose to strip out the language that began in HB 2078 from his amendment, once he learned that its inclusion would have sparked a filibuster and killed the entire amendment.

A Tough Fight That Isn't Over

Jim Baller, the nation’s leading telecommunications attorney who was directly involved with defeating the bill told Communications Daily:

“This was one of the toughest state battles that we’ve fought in years. It took months of constant vigilance, quick and effective reactions to ever-changing language, and hard daily work with key members of the legislature. The most important part was getting across the message that this is not a matter of the public sector competing with the private sector, but of communities retaining the ability to work with willing incumbents, create public-private partnerships, develop their own networks, or do whatever else they believe necessary to acquire affordable access to the advanced broadband networks on which their futures will depend.”

Jim went on to tell us that a number of people dedicated their time and energy to stopping the harmful language of HB 2078.

“Many Missouri communities and national organizations contributed to this victory, but special kudos go to Ewell Lawson, the Manager of Government Relations of the Municipal Public Utility Alliance, and Richard Brownlee, Google’s legislative representative for Missouri.” 

The battle this year in Missouri was yet another chapter in what is becoming an annual occurrence. This year's events underscore how changes to bill language and procedural process can change the course of legislation up until the gavel comes down sine die. Along with Jim, Ewell, Richard, the MPUA, and the other folks who believe that local communities in Missouri should make their own decisions, we will continue to watch the state legislature and keep you in the loop.

Tennessee Potential Partnership Between Morristown Muni and AEC Co-op - Community Broadband Bits Podcast 203

In Tennessee, this month marks 10 years of Morristown Utility Systems delivering fiber-optic triple-play service to the community, including great Internet access. But those living just outside the city and in nearby cities have poor access at best. MUS General Manager and CEO Jody Wigington returns to our show this week and we also welcome Appalachian Electric Cooperative (AEC) General Manager Greg Williams to discuss a potential partnership to expand Morristown services to those that want them.

As we have frequently noted, Tennessee law prohibits municipal fiber networks from expanding beyond their electric territories. The FCC decision repealing that favor to the big cable and telephone company lobbyists is currently being appealed. But Tennessee also prohibits electrical co-ops from providing telephone or cable TV service, which makes the business model very difficult in rural areas.

Nonetheless, MUS and AEC have studied how they can team up to use the assets of both to deliver needed services to those outside Morristown. We discuss their plan, survey results, the benefits of working together, and much more.

Read the transcript from this show here.

We want your feedback and suggestions for the show-please e-mail us or leave a comment below.

This show is 24 minutes long and can be played below on this page or via iTunes or via the tool of your choice using this feed.

You can download this mp3 file directly from here. Listen to other episodes here or view all episodes in our index.

Thanks to Forget the Whale for the music, licensed using Creative Commons. The song is "I Know Where You've Been."

AL Legislators Don't Wanna Hear It: Local Authority Bill Stalls In Committee

Alabama Republican State Senator Tom Whatley tried again this session to convince his colleagues that municipal utilities need the ability to expand beyond current coverage areas. Once again, his appeal to common sense for better connectivity fell on deaf ears.

Deja Vu

Whatley, representing the Auburn region, held fast to his promise to bring back a proposal like 2015’s SB 438. Early in February, he introduced SB 56, which stalled in the Senate Transportation and Energy Committee, unable to get a hearing. The bill eliminated limitations on both services offered and where municipal systems can offer those services.

In a January OANow article, Whatley explained that, once again, he was driven by the desire to improve economic development in Auburn:

On the local level, Sen. Tom Whatley, R-Auburn, is sponsoring two bills that he hopes will drive industry to and create jobs in Auburn and Opelika. An Internet availability bill would allow municipalities that offer their own high-speed [gigabit] Internet service, such as the city of Opelika, to expand and offer it in other areas, such as in Auburn and Russell or Tallapoosa counties, which are not eligible for [gigabit] service through private Internet companies.

“The [gigabit] service is something that businesses look for,” Whatley said, adding industries look at [gigabit] Internet the way they do school systems and water and sewer before moving their business into a city. “It’s an economic development tool.”

To Spread The Wealth

Opelika is proof positive in Alabama that municipal networks spur economic growth. Since deploying their Gigabit per second (Gbps) Fiber-to-the-Home (FTTH) network, the community has experienced significant growth, a number of awards, and local subscribers love the service they get from Opelika Power Services (OPS).

OPS would like to offer the same fast, affordable, reliable high-quality Gigabit connectivity to nearby Auburn, but the state’s restrictions prevent expansion. From a February OANow article on SB 56:

“We have an obligation to serve our citizens, but we can’t go across the street into Auburn. We can’t go across the street into the county. You’ve got some folks in the county who are literally in a digital desert,” [Opelika Mayor Gary] Fuller said. “The Opelika City Schools have a gig of Internet speed. Auburn does not have a gig of speed. We’d love to serve not only Auburn City Schools, but also Auburn University with ultra high-speed Internet.”…

“[The network is] owned by the citizens, just like the power company. The power company has been owned by the citizens for over 100 years,” Fuller said…

“We just want to offer our service to folks who don’t have service or inadequate service or less-than-ideal service…Sen. Whatley has been our champion on this.”

Mayor Fuller told OANow that he was ready to testify before the Transportation and Energy Committee but no hearing was ever scheduled before the session ended on May 4th.

An Easy Fix

With the Appellate Court considering the FCC’s reversal of state limitations in Tennessee and North Carolina, there is a chance that Sen. Whatley may not need to continue to press his colleagues for changes in state law. Rather than depending on federal intervention to set things right, however, state leaders have the opportunity to restore local authority now.

Sen. Whatley has the right idea - let communities make their own connectivity decisions by removing state barriers.

Change.org Petition: CA Lawmakers, Vote for Greater Local Authority, Don't Abandon Copper Yet

The California State Assembly will soon vote on three bills that have significant implications for rural Internet access initiatives in the Golden State. An online Change.org petition is asking you to urge lawmakers to give local communities the authority to determine their own Internet access needs.

On April 20th, 2016, the State Assembly will vote on a bill to provide state funding for community-based efforts aimed at improving broadband access in rural areas. And during the current session this week, California Represenatives will vote on two additional bills, drafted by lobbying groups working for the telecom industry, which seek to give incumbent providers even greater power to control the quality and price of Internet access options that are available in these rural communities.

From the petition:

Bill AB1758 was drafted by rural broadband activists and sponsored by assemblymen Mark Stone, Eduardo Garcia, Marc Levine, and Mike McGuire. It extends state funding and grant programs to local agencies and consortiums to plan and build community based internet solutions in communities throughout the state that have been ignored by big telcom. The bill requires a super majority to move from committee to vote. Committee members need to hear from people around the state to move this bill forward. If it dies in committee, funding will cease, and rural communities around the state will be at the mercy of AT&T, Comcast, Time Warner, etc. AB1758 comes to discussion on April 20th, 2016.

The petition describes two other bills up for consideration, AB2130 and AB2395, which will greatly influence the use of California Advanced Services Funds, allowing large corporate cable and telecom incumbents access to those funds. Local communities will have very little opportunities to obtain those same grants under the proposed changes.

One of these bills will allow AT&T to retire copper lines; rural areas are not ready for such an abrupt change. We've covered how AT&T and other big incumbents have pressed state legislatures for the ability to abandon copper in favor for cheaper technology.

Check out the online petition for more detail.

More Colorado Communities Shut Out State Barriers At The Voting Booth

Once again, local communities in Colorado chose to shout out to leaders at the Capitol and tell them, "We reclaim local telecommunications authority!"

Nine more towns in the Centennial State voted on Tuesday to opt out of 2005's SB 152. Here are the unofficial results from local communities that can't be any more direct at telling state leaders to let them chart their own connectivity destiny:

Akron, population 1,700 and located in the center of the state, passed its ballot measure with 92 percent of votes cast supporting the opt-out.

Buena Vista, also near Colorado's heartland, chose to approve to reclaim local authority when 77 percent of those casting votes chose to opt out. There are approximately 2,600 people in the town located at the foot of the Collegiate Peaks in the Rockies. Here is Buena Vista's sample ballot.

The town of Fruita, home to approximately 12,600 people, approved the measure to reclaim local authority with 86 percent of votes cast. Now, when they celebrate the Mike the Headless Chicken Festival, the Fruitans will have even more to cheer.

Orchard City, another western community, approved their ballot measure when 84 percent of voters deciding the issue chose to opt out. There are approximately 3,100 people here and a local cooperative, the Delta-Montrose Electric Association (DMEA) has started Phase I of  its Fiber-to-the-Home (FTTH) network in the region. According to an August article in the Delta County Independent, Delta County Economic Development (DCED) has encouraged local towns, including Orchard City, to ask voters to opt out of SB 152. With the restriction removed, local towns can now collaborate with providers like DMEA.

In southwest Colorado is Pagosa Springs, where 83 percent of those voting supported the ballot measure to opt out. There are 1,700 people living in the community where many of the homes are vacation properties. Whether or not to reclaim local telecommunications authority was the only ballot issue in Pagosa Springs.

Silver Cliff began as a mining town and is home to only 587 people in the south central Wet Mountain Valley. Voters passed the ballot measure to opt-out of SB 152 with 80 percent of votes cast.

In the north central part of the state sits Wellington, population approximately 6,200. The community has some limited fiber and their ballot initiative specifically states that they intend to study the feasibility and viability of publicly provided services. Their initiative passed with 83 percent of the vote:

WITHOUT INCREASING TAXES, WITH THE INTENT OF STUDYING FEASIBILITY AND IN THE FUTURE EVALUATING THE VIABILITY OF THE TOWN OF WELLINGTON POTENTIALLY PROVIDING SERVICES, SHALL THE CITIZENS OF THE TOWN OF WELLINGTON, COLORADO, ESTABLISH A TOWN RIGHT TO PROVIDE some or ALL of the SERVICES RESTRICTED SINCE 2005 BY TITLE 29, ARTICLE 27 OF THE COLORADO REVISED STATUTES, DESCRIBED AS "ADVANCES SERVICES," "TELECOMMUNICATIONS SERVICES" AND "CABLE TELEVISION SERVICES," INCLUDING ANY NEW AND IMPROVED HIGH BANDWIDTH SERVICES BASED ON FUTURE TECHNOLOGIES, UTILIZING COMMUNITY OWNED AND PRIVATELY OWNED AND CONTRACTED FOR INFRASTRUCTURE INCLUDING BUT NOT LIMITED TO EXISTING FIBER OPTIC NETWORK, EITHER DIRECTLY OR INDIRECTLY WITH PUBLIC OR PRIVATE SECTOR PARTNERS, TO POTENTIAL SUBSCRIBERS THAT MAY INCLUDE TELECOMMUNICATIONS SERVICE PROVIDERS, RESIDENTIAL OR COMMERCIAL USERS WITHIN THE Town ?

Another small community, Westcliffe with 568 people, also took the issue to the voters. Of those voting on Ballot Question A, 76 percent voted "yes" to reclaim local telecommunications authority. The town is located at the base of the Sangre de Cristo Mountains in Custer County.

Two weeks ago, we told you about Mancos where community leaders want to explore the possibility of using existing publicly owned fiber for better connectivity. In Mancos, the Board of Trustees of the community of 1,300 recognized that the bill was anti-competitive and passed a resolution urging voters to approve the opt-out. As the Town Administrator acknowledged, reclaiming local authority, "gives us a lot more leeway." Mancos wants to have the freedom to investigate public projects and public private partnerships. Voters agreed and 86 percent of those casting ballots approved the measure.

C'mon Already!

Last November nearly 50 local communities sent a message loud and clear to the state legislature that they want the freedom to make their own decisions about connectivity. Opting out of SB 152 does not mean a community will build a muni but allows them to explore the possibility of serving themselves or using their own fiber assets to work with private sector partners.

For these communities, there is no good that comes from SB 152. Its only purpose is to limit possibilities and restrict competition in favor of the big corporate providers who lobbied so hard to get it passed in 2005.

We've said it before and we'll say it again. Rather than force local communities to spend local funds on these referendums to reclaim a right that was taken away from them by the state in 2005, Colorado needs to repeal the barriers erected by SB 152.

Mancos Voters The Latest To Decide Local Authority In Colorado

Mancos, a rural community of about 1,300 in rural southwest Colorado, hopes to join over 50 other communities across the state that have reclaimed local telecommunications authority. On April 5th, the town will decide whether to exempt itself from SB 152, Colorado's 2005 state law that removed local choice from municipalities and local governments.

Located at the base of the Mesa Verde National Park, Mancos is best known for outdoor recreation and as the gateway to the park, home to the historic Mesa Verde Cliff Dwellings. Rangeland and mountains surround the community.

The Pine River Times Journal reports that Mancos is looking to utilize 3,300 feet of fiber optic assets already in place. The fiber now connects municipal facilities but community leaders want to have the option to use the network for businesses, residents, or to provide Wi-Fi to visitors. SB 152 precludes Mancos from using their publicly owned fiber for any of those purposes without first opting out.

On March 9th, the Town Board of Trustees approved a resolution encouraging voters to pass the ballot initiative that will reclaim local authority. They have information about the ballot question and what it will mean for the community on their website.

“It’s an anti-competition bill [SB 152],” [Mancos Town Administrator Andrea Phillips] said. “[Exempting out] gives us a lot more leeway.”

Mancos has no specific plans to develop a municipal fiber network but, like many other communities that opted out last November, they want the ability to do so or to work with a private sector partner. Nearby Dolores is collaborating with Montezuma County; the two have contracted jointly for a feasibility study. 

According a March 16th Pine River Times Journal article, Dolores and Montezuma County will put the issue to voters in November. Jim McClain, IT Manager for the county said:

“Opting out unties our hands in order to build up the system. It’s like we build the road, and then private companies provide the service on that road.” 

“When people and businesses are thinking of moving here, the first thing they want to know is if there is broadband.” 

In Mancos, the local Chamber of Commerce is considering the needs of visitors as well as residents.

“It’s all about economic vitality,” [Mancos Valley Chamber of Commerce Administrator Marie Chiarizia] said.

Mancos potentially could make broadband service available anywhere in the town if it’s exempted from SB 152, Chiarizia said. Outdoor events such as Mancos Days draw temporary vendors, and broadband access would allow those vendors to be able to take credit and debit cards more quickly, she said.

The Mancos Board of Trustees voted to contribute $4,100 to participate in the feasibility study on March 23rd. 

“To look to the future and become prosperous you have to look at the infrastructure of the town and offer these services...Mancos is a unique community unto itself, but this will help us promote our town better and place us on a competitive edge,” [Chiarizia] said.

AT&T Celebrates, Tennessee Families Go Another Year Without Internet Hope

As I write this, I suspect the "platoon" of lobbyists from AT&T and Comcast in Nashville are waking up with hangovers from celebrations last night after they once again defeated a bill to restore local authority in Tennessee. After a grassroots uprising, we thought the state would finally allow communities to decide for themselves if networks like Chattanooga's famed gigabit EPB would be able to expand.

Color me extremely disappointed - not because AT&T won, but because I fooled myself into thinking this grassroots mobilization might matter.

From the Times Free Press,

On Tuesday at the state Capitol in Nashville, a platoon of lobbyists and executives, including AT&T Tennessee President Joelle Phillips, were present in the House hearing room or watching on a video screen as Brooks presented the bill and the amendment.

...

It failed on the 5-3 [committee] vote with Rep. Marc Gravitt, R-East Ridge, voting for Brooks' amendment and Rep. Patsy Hazlewood, R-Signal Mountain, a one-time AT&T executive, voting against it.

Eight people voted on the bill. AT&T and Comcast formed the majority of the 27 lobbyists fighting against the bill according to Karl Bode.

People in Bradley County have either no service or poor access from companies like AT&T - but Chattanooga's EPB is not allowed to expand due to a state law pushed by the cable and telephone companies nearly 20 years ago to prevent competition.

These are people whose children have to go to libraries or fast food restaurants every day to do their homework. These are businesses that can barely compete in the digital age because AT&T doesn't view modern connectivity in the region an investment that would garner a fat return.

But alas, money and corporate influence again ruled the day in Nashville, where the Governor and others have continued to refuse to admit there is any problem worth fixing. This lede from Times Free Press answers the question of why companies like AT&T "donate" so much to political campaigns:

Gov. Bill Haslam says efforts by EPB and other municipal electric services to expand high-speed Internet to rural areas won't fully solve Tennessee's broadband accessibility issues and doesn't fairly treat for-profit servers like AT&T and Comcast.

In the face of this injustice, the Governor's first concern remains with what is fair to AT&T and Comcast, not what is best for the millions of Tennesseeans struggling with no connectivity or last generation slow Internet access.

To cover any charges they are doing nothing, they have announced an official "kick the can down the road strategy." Consider the Facebook post from AT&T executive turned state Legislator Patsy Hazlewood:

The state has invested $250,000 for a comprehensive study of broadband in TN. The report will be presented in June and will do a number of things. It will define broadband--which has a wide variety of definitions by both providers and customers across the state. The report will outline options for deployment and penetration on a statewide basis.

Great - one hopes that as parents drive their children to do homework while parked in front of closed libraries with active Wi-Fi access points that the state will soon decide how to define broadband.

This is why the FCC ruling to restore local Internet choice to communities is so important and oral arguments for the appeal are this week.

What remains to be done is a greater grassroots mobilization to demand that Nashville allow communities to solve their own problems. Republicans regularly critize Democrats for trying to enact a "nanny" state where the government refuses to let people make their own decisions. But when those same Republicans are in power, we see them restricting local governments from solving their own problems locally.

Bradley County and the local governments therein should be free to work with EPB if that is their choice. All this nonsense about fairness to AT&T and studying the definition of broadband in the year 2016 are a direct result of AT&T's power in Nashville and the dependency of elected officials on powerful companies for political donations and favors.

TN and NC vs. FCC: Oral Arguments Scheduled for Thursday, March 17th

This Thursday, March 17th, attorneys for the FCC and the states of Tennessee and North Carolina will present arguments to the Sixth Circuit Court of Appeals on a case that could define parameters for publicly owned Internet networks. The proceedings begin at 9 a.m. eastern. Each side has 15 minutes to present.

As we reported a year ago, the FCC ruled that state barriers in Tennessee and North Carolina limiting expansion of publicly own networks are too restrictive and threaten the U.S. goal of expanding ubiquitous access. The FCC overruled the harmful state laws but soon after, both states filed appeals.

The cases were consolidated in the Sixth Circuit and a number of organizations, including ILSR, offered Amicus briefs. We have collected all the briefs and made them available for you here. As most of our readers will recall, the case focused on Chattanooga and Wilson, two communities that know the many benefits of publicly owned networks.

So, when you raise your glass of green beer on Thursday to celebrate St. Paddy's, send some luck to our friends in Wilson, Chattanooga, and the FCC!

Colorado Bill Aims To Hinder Opt-Out, Restrict Local Authority Even More

When local elected officials in Colorado put the issue before constituents last fall, voters in almost 50 communities chose overwhelmingly to reclaim local telecommunications authority. Colorado's state law that strips away local authority, SB 152, permits opt-out through referendum. Referendums are expensive for local communities, but at least they are a way to reclaim the power to decide their own future. 

That ability to opt out will get more expensive and more burdensome if a new bill becomes law. Even though the state removed local authority with SB 152, this bill demonstrates that the legislature can still find a way to strip away more local control when big corporate providers feel threatened.

Local Leaders Concerned

SB 136, sponsored by Kerry Donovan, was introduced on March 4th under the guise of "modernizing" the dreaded SB 152. The bill is now waiting for a hearing in the Senate State, Veterans, and Military Affairs Committee. According to the Aspen Daily News, Pitkin County Commissioners are wary of the bill's consequences. So are we. Ninety-two percent of Pitkin County voters approved the opt-out of SB 152 last November, thereby reclaiming authority. The county has already completed a needs assessment and is obtaining bids for telecommunications infrastructure; they don't want this bill to derail their efforts.

Kara Sillbernagel, Pitkin County analyst, shared her interpretation with the Board of County Commissioners (BOCC):

...[A] concern is SB 136 could open the door to potential litigation in the opt-out process.

...

Silbernagel added that, in her opinion, the language complicates the issue away from the simple opt-out solution, and introduces terms which have left governments that opted out “feeling vulnerable.”

“[Concerns are that] it actually seems to be more restrictive for counties moving forward,” she said.

"Modernized" Language = "Modernized" Barriers

Among other changes, the proposed bill requires local governments to give a 60-day notice to private providers if an SB 152 opt-out question will be on the ballot. Local governments are already required to provide notice when a new measure is to be included on a ballot; this creates an additional requirement for measures related to broadband.

The bill also mandates that, prior to the election, a local community must develop and publicize a detailed plan as to what types of services it intends to offer, where the services would be offered, projected revenues, projected expenses, and why the municipality or its partner is seeking to offer those services. If a municipality seeks to work with a private sector partner, the requirement that they release this type of information will make any potential partner think twice. Competitors that have access to such data have an edge before the project has permission to commence.

There also appears to be considerable confusion in the bill's language regarding the term "services." Fiber, wireless, direct, indirect, video, voice? The ambiguity is off-putting for any community and potential partner hoping to offer connectivity where the big corporate providers won't go while also avoiding legal challenges. How can a community create a plan that does not run afoul of the law if the details of the law are clouded in mystery?

This section of the bill will increase the burden it places on local government. It will increase costs to communities early in the process, extend the timetable for proposed projects, and make local governments and their partners vulnerable to litigation from deep-pocketed incumbent providers. A legal challenge can stop a proposed project in its tracks simply by asserting that a business plan is ill-defined.

From the Aspen Daily News artice:

Commissioner Patti Clapper said the bill sounded like blowback from industry due to so many jurisdictions voting to opt-out of SB-152.

“It almost seems like … a way for industry to come in from the back door and nail us the other way around,” she said.

A Simple Solution

The bill attempts to remove barriers that prevent communities from entering into public private partnerships. The only barriers in Colorado are those put in place by SB 152. Rather than toying with unnecessary changes that make the barrier more restrictive, the best option is to repeal SB 152 and let local communities decide for themselves how best to solve their connectivity needs.