Monday, November 27, 2006

"LUS heads to La. high court"

Blogging from sunny Terlingua, Texas... When I got up this morning the cafe next door had their WiFi up and I was able to scan today's news back home. (Apologies for recent spotty posting, we haven't found campsites with "free high speed internet"---yet.)

Both the Advocate and the Advertiser have articles written in anticipation of tomorrow's oral arguments in the LUS bond case. Both have good reviews of the history of the legal conflict if you'd like to refresh you memory on the case.

The one point that I feel is signficant that neither paper covers is the attempt by LUS and its legal allies (the Lousiana Municipal Association and the Fiber to the Home Council have both issued friend of the court briefs) to overtun not just the last decision of the Louisiana Third Circuit but the one prior to that—the one LUS and the city chose not to appeal—as well. The Advocate article alludes to that situation:

A bond ordinance passed by the City-Parish Council sets up the rules LUS will follow to pay back the bond issue.

In that ordinance, LUS says that if it cannot make a bond payment with communications revenue — as required by the Fair Competition Act — the communications business would be shut down and the bond holders would be paid back with overall utilities revenue.

LUS argues that meets the legal definition of a “pledge” required by the Fair Competition Act
That definition of "pledge" is arguably not in the (un)Fair Competition Act. The bond ordinance in question was crafted to meet the requirements of a loss at the Third Circuit that overturned a previous bond ordinance which the city thought fulfilled the requirements of the Act. The city did not choose to appeal that decision; that decision which was criticized at the time for conceding too much. The arguments in the current appeal attack both this previous decision and the current one which it is based on that unappealed decision. Should Lafayette win in the Supreme Court and the Court accept its argument it will roll the status quo back to the state of affairs before the first Third Circuit loss.

Light a candle folks. A lot is riding on this one.

Lagniappe: The Advertiser article closes with a teaser paragraph:

If the Louisiana Supreme Court upholds the Third Circuit decision, ruling against LUS, Huval said the options to be considered depend upon the specifics of the decision. The options may include revising the bond ordinance again, asking the state Legislature to repeal the Local Government Fair Competition Act or looking at other alternatives to proceeding with the project, alternatives that Huval declined to discuss.

I think it is pretty clear that the fight wouldn't be over even if Lafayette lost in Louisiana Supreme Court. These pages have long favored a vigorous, state-wide repeal fight and it appears that city is up for it. But I am most intrigued by the hints about "other alternatives." Hmmmnn.


P.O. Stacomment said...

Hello John

Maybe the reason the media didn't recognize the legal allies is because they are 2 organizations that Lafayette belongs to and pays dues to or hires for representation. Jim Baller is the attorney that signed the Fiber to the home brief and he was the attorney Lafayette paid hundreds of thousands of dollars to represent them in Baton Rouge during the negotiation of the Local Govt. Fair Competition Act. The LMA argument is weak because the bond attorney for Lafayette told the Bond council these were revenue bonds that would not have a impact on municipal bonds or state bonds.

GumboFilé said...

¡Viva Terlingua!

John said...

Gumbo: Indeed, long live the anarchy that is Terlingua. We had drinks at La Kiva...and steak as a side light.

Statcomment, (Would that you would use your real name.) These are both legitimate, real organizations that seldom join in their member's lawsuits. (And I'm not certain Lafayette belongs to the FTTH's mostly industry members.) The implication that they've been paid for their opinion is both wrong and small-minded. They are not astro turf some. (Yours?)