As the LUS fiber project continues its journey through the courts, it is worth noting that it did not have to be this way.
That this project finds itself in legal jeopardy today is a direct result of the failure of the Durel administration to recognize the nature of its primary opponent on this issue, BellSouth. BellSouth has been intent on killing this project and any other project like it from the start. That's why their initial legislative response was a bill to prohibit local governments from getting into the telecommunications business.
The Durel administration and its advisors failed to recognize the way BellSouth and other Regional Bell Operating Companies (RBOCs) have used the legal system to thwart competition and to strangle competitors. And it is that failure that led it into two strategic mistakes that may yet prove fatal to this project.
The first failure was to agree to the terms of the Fair Competition Act of 2004.
It may be the nature of legislative compromise for parties to try to get at least some of what they want in what amounts to the horse trading that is the legislative process. Clearly, the team of advisors working on the Lafayette side of the Fair Competition negotiations did not pay close enough attention on what they were allowing BellSouth to insert into the bill, apparently focusing on the elements in the bill they felt Lafayette needed in order to proceed. Remember that the Lafayette fiber project had already advanced beyond some of the stages covered by the bill that ultimately became law.
I believed then (and have said so on a number of occasions since) that Lafayette was content to leave barriers erected behind its project in the belief that the law would allow our city to proceed on its project. It was short-sighted and it was, in fact, a colossal misreading of the situation.
But, the real mistake was agreeing to the legislation at all. People on the Durel team and in LUS have told the story how they had been assured by Governor Blanco that she would veto any bill that they could not live with. They naively agreed to this law and, in the process, set the trap that has now ensnared this project.
Why do I say that the Durel administration was naive?
Because the history of the phone industry is one defined by the ability of the incumbent carriers (in this case BellSouth) to use the legal system to resolve and eliminate competitive threats. By agreeing to a law regarding municipal telecommunications systems, the Durel administration was putting the ultimate fate of the project where BellSouth wanted it and where it operates best: the courts. That's right! It's better in court than it is winning its way in the Legislature and at the PSC.
The ultimate mistake that the Durel administration made was in assuming that it could negotiate in good faith with BellSouth on the provisions of this act. The administration gave BellSouth the benefit of the doubt which they clearly did not deserve.
During the fiber campaign, the administration appeared to have learned from that mistake (helped along, no doubt, by a round of court cases involving lawyers from BellSouth). BellSouth's various, transparently phony attempts to demonstrate that they had great plans for network infrastructure in Lafayette or were possibly willing to strike a deal with Lafayette were recognized as being the desperate acts of a desperate company that they were.
With the fiber victory behind us and more litigation ahead of the project, the Durel administration apparently forgot what it had learned and made its second glaring error in judgment this year going into the Regular Session of the Louisiana Legislature.
As you may recall, Lafayette had a series of bills introduced that would have repealed in part or in whole the Fair Competition Act. All but one of those bills was withdrawn in exchange for a pledge from BellSouth not to engage in any further litigation against the LUS project. Knowing full well that the agreement would not end the litigation, the Durel administration agreed to this bone-headed deal that cleared way for state approval of the AT&T buyout of BellSouth and removed Lafayette (and its influential legislative delegation) from the battlefield in the fight over the statewide video franchise bill BellSouth sought.
Let's see: you give your opponent everything they want in exchange for approximately nothing! Heck of a deal!
As you know, that legislation (HB 699) won approval from both houses of the Legislature but was vetoed by Governor Blanco.
What's that old saying? "Fool me once, shame on you. Fool me twice, shame on me."
The LUS fiber project finds itself in legal jeopardy today because the Durel administration has at key moments of this multi-year, multi-chapter drama played naive Opie to BellSouth's cynical Godfather. At this point, not surprisingly, the score reads: "Advantage Godfather."
It didn't have to be this way.