Conn. Ruling on 'Municipal Gain' Could Be Municipal Loss
The Connecticut Consumer Counsel is seeking to avoid a possible state commission ruling that could discourage municipal fiber networks, said Office of Consumer Counsel officials in an interview. But telecom companies and workers said it’s about keeping the playing field level. The matter, involving use of a space on utility poles reserved for municipal use, could go to court or the Legislature, the OCC officials said. The FCC is mulling pole attachment issues in broadband infrastructure rulemakings.
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The “municipal gain” statute reserves a space on each pole for municipal use for any purpose without charge. The OCC asked the Public Utilities Regulatory Authority to rule it includes allowing local governments to lease the space to a third party to provide commercial broadband services. But in a June draft decision in docket 17-02-40, PURA agreed with industry there are limits, with municipal broadband not allowed. The OCC asked to withdraw its petition, a move that could prevent PURA from finalizing the proposal.
PURA staff is drafting a response to OCC’s motion to withdraw, a PURA spokesman said Tuesday. There’s no set date to respond, but it’s likely to be by the end of August, based on experience with similar matters, he said.
The OCC asked to withdraw because it disagrees with the draft decision “on many different levels including legally,” said Connecticut Consumer Counsel Elin Swanson Katz said. It’s better “to let the law speak for itself” than publish the “erroneous” PURA interpretation, she said. State administrative law allows and precedent exists for OCC to withdraw, said OCC principal attorney Joseph Rosenthal. “Any purpose” should mean any purpose, he said. But the PURA draft would disallow a municipality using the municipal-gain space to provide broadband to its citizens either on its own or through public-private partnership, he said.
Industry debated OCC about the withdrawal request at a PURA oral argument last week. The agency’s Chair Katie Dykes asked how to proceed as she raised concerns about possibly inviting other parties to test PURA positions and “yanking away the football” if they don’t like them. Frontier, the Communications Workers of America and the New England Cable and Telecommunications Association, supporters of the draft, urged PURA to find a way to finalize the ruling on its own. “Any entity, whether a town or a private provider, who is providing competitive broadband services should play by the same rules as all other providers,” a Frontier spokeswoman said Monday.
OCC could go to court if PURA issues a final decision, Rosenthal said. “It’s possible” PURA could finalize the decision, “but then they would be taking the risk that we would be able to appeal to the [Connecticut] Superior Court,” the attorney said. Regardless, “the battle may move back to the Legislature … for clarification,” he said.
The Legislature and PURA “need to get into a more progressive stance on broadband,” Rosenthal said. “We’re good at having debates and squabbles but meanwhile our neighbors are moving ahead.” PURA’s decision could hold back Manchester, a town that already uses the reserved space for a fiber network, primarily for municipal buildings, said Office of State Broadband Policy Coordinator Bill Vallee. “They’re very anxious in that town to expand their use of it.”
Manchester sees the municipal gain as a way to get beyond town buildings, said Chief Information Officer Jack McCoy. When Manchester started its fiber project more than 15 years ago, the town relied on the municipal-gain law to string cable between municipal buildings, he emailed. “The industry objected but offered no competing Fiber Optic Connections at the price/performance levels the Town could afford.” Manchester General Manager Scott Shanley said: “In a quickly evolving area of the economy and lifestyle, any municipality’s options for use of the gain need to stay open. … Residents and taxpayers deserve the option to provide some services to themselves should they choose to do so, especially those that will be ubiquitous.”
“The biggest barrier to better broadband access is the way the big existing cable and telephone monopolies can block smaller firms from expanding or getting into this business,” said Chris Mitchell, Institute for Local Self-Reliance director-community broadband networks. “Finding ways to lower the cost and uncertainty around getting on poles is very important.”