Thursday, November 30, 2006

More on LUS Appeal (updated)

(updated 12/1--the earlier, on-the-fly version was way too telegraphic. Apologies; that's what happens when you try and post quickly from a rest stop. :-) )

I missed an article from KATC on Tuesday's Oral arguments in the LUS Bond/Loan case in my recent reporting. It's interesting in that plantiff's lawyers are denying that they are paid directly by BellSouth, Cox, or anyone other than Naquin. Now that doesn't mean she isn't being paid nor that they don't know of connections but it is the first denial of any sort that we've heard.

On the topic whether the basic issues of the suit will get a better hearing before the Supreme Court than they did before the Third Circuit, City-parish Attorney Pat Ottinger is cited as saying:
"I think the justices understand. Based on the questions they were asking."
That's the impression the newspaper articles leave us with as well. They're asking how the plantiff's lawyers interpretation can make any sense at all. I find it pretty amazing that the lawyers reply is that the law is badly written--essentially admiting that the law, as they read it, doesn't make sense. That's an astonishingly weak defense when the accepted way to analyze of any law is to find the interpretation that does make internally consistent sense.

Even more interesting we get a qoute from Durel on the issues going forward regardless of the outcome of the court's deliberations. (Previous remarks have been attributed to LUS' Huval). He says:
"I think it if was good enough two years ago, a year and a half ago, for our citizens to vote 62 for 38 against, then it's worth looking at what the next possibilities are"
PS: Did you know that restops in Texas have WiFi? I didn't before this post. At least the one Hwy 90 rolling into San Antonio from the west does anway.

Fiber down Hwy 90

The pic at left was taken on the vast, dry plains of West Texas outside Marathon headed east. We were on US Hwy 90 (yes, the same Hwy 90 we call Evangeline Thruway) and I was struck by the fact that both sides of the road were lined with these odd markers for 100's of miles. The white stick with the orange cap is the standard marker for a buried fiber optic line. The label on this particular one marked it as having once belonged to MCI and some of those fibers surely make it to regeneration station near Lafayette's Amtrack station.

It was a weird sensation to see that connection to Lafayette in a surrounding that was so unlike South Louisiana.

It was also disconcerting to know that the region through which it ran saw no benefit from the fiber--patches of telephone service wires to the separate remote communities were clearly running out from microwave dishes near each town. Modern telecommunications is almost invisible for long stretches of rural America and this is one of our most isolated regions.

Wednesday, November 29, 2006

Lafayette's day in Court

Signing in late but with passion from the parking lot of the La Quinta Inn in Del Rio, Texas. (The road sign says "La Quinta is Spanish for high speed Internet.")

Well oral arguments were heard yesterday in the bond/loans case that is before the State Supreme Court. As has become the norm you can get versions from both the Advertiser and the Advocate. Both are interesting and both cite remarks from the judges that hold out hope that the court will seriously question whether the plaintiff's (and the 3rd Circuit's) positions make any sense in the context of a law that claims to make competition possible. From the Advertiser:

Justice Jeanette Knoll asked if Baudin's position would be the same if LUS secured a loan from a bank instead of its electric, water and sewer divisions.

He said it would not change because state law allows no loans once the bonds are issued.

"Would they ever be successful?" Knoll asked. "That scheme is self defeating."

"Ms. Naquin didn't draft this act," Baudin replied. BellSouth, the city and others participated in drafting the Local Government Fair Competition Act "and it was poorly drafted," he said.

From the Advocate:

Chief Judge Pascal Calogero Jr. asked about a provision of the law that prohibits LUS from cross-subsidizing its communications business with tax revenue or “below market-rate” loans.

“Doesn’t that mean it’s OK?” Calogero asked Baudin. “If they’re not below market rate?”

It is a basic point of legal interpretation that laws should be interpreted as though they were internally consistent and in service of the declared purposes. The Third Circuit, in my judgment violated this principle; it is apparent that the Supreme Court is at least asking the right questions.

While the Advocate sticks close to explicating the issues at hand the Adverstiser gives us a few little extras that usefully spice up the story. On the mysterious Ms. Naquin it reports:

At one point, the justices asked questions some Lafayette residents have been asking about the case.

"Who is your client?" Chief Justice Pascal Calogero Jr. asked Baudin, who replied Naquin.

"I thought it might be BellSouth," Calogero added.

Indeed, that's what lots of us think it might be. Though Cox could be the bad boy here as well, given the history of these suits. It seems very unlikely that Naquin and Eastin--as unlike a pair as you are likely to encounter--met and searched out a law firm across the basin to engage in lawsuits that benefit nobody but the incumbents without some sort of help. (Eastin has resigned this suit but remains involved, as far as I know, in another and has also refused to explain his actions or how he got involved.)

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.

Friday, November 24, 2006

Cox & the Need for Competition, Without Further Comment

I was going to write a small post based on an email I received from a friend recently. But the text of the email does the job without the need for further comment:
I'm at a client's when it happens, I call tech support, they tell me "big outage", OK. I had gotten my client's Cox bill just in case I was asked for any info and I had tech support transfer me over to sales so I could review their paltry 768/256 plan ($60 for that crappy level of service, not that the DSL business plans are any better).

So I'm talking to this guy Larry and he's blandly telling me the next jump up to 1.25/368 is $100. I say, "You know, things are going to be happening around here and your plans won't look so good." He says, "You're talking about LUS, right?" and I say yes, so he says ...

"We'll be competitive when we have to. We're in this business to make money."

!!!!!!!!!!

Tuesday, November 21, 2006

"Cox 'push polling,' residents say"

Few in Lafayette will be surprised to hear that Cox has been accused of push polling in Arizona after our experience here.

Apparently the push polls there are designed to produce results that would be helpful to Cox's lobbying projects in the Arizona legislature. The (false) contrast the Cox poll promotes is between having more HD and on-demand channels by offering fewer public access channels. That's not a necessary choice at all and it's not being suggested elsewhere. Cox is suggesting that is the choice anyway--without mentioning the premium price of the one and the free quality of the public access channels. Cox will make a ton more money off the specialty services than in filling its contractual obligation to provide local access TV as a service to the community. But put that way its sounds greedy. So they try and get the public to say it for them by asking misleading questions.

The push poll also throws in a little gist for lobbying effort to reduce the maximum amount that cable companies can be charged for using the public rights of way.

Cox. Your friend in the digital age, right? Now you know why that animated cartoon character is draw to look so silly--he's gotta be a credible spokesperson for absurd ideas.

Monday, November 20, 2006

Wilson, North Carolina gets Fiber

The city of Wilson North Carolina has decided to build a fiber to the home network according to LocalTechWire. Lafayette citizens will find their reasoning familiar:
The City decided to deploy its own fiber network and then open it for use by businesses and citizens after private companies Time Warner Cable and Embarq said they would not provide fiber infrastructure, Freeman explained. Embarq provides telephone service across Wilson County. Time Warner is the city’s cable TV provider.

“We just can’t rely on other people to determine our destiny,” Freeman said.
The city's phone company, Embarq, is a small, local phone company piece spun off by Sprint-Nextel to satisfy regulators and as such doesn't have the resources to build a modern network. It, apparently, has decided to cooperate. Time-Warner, the cable company chooses not to comment. Lafayette's advice: watch out for the cable guy!

Saturday, November 18, 2006

Not Always Full Speed Ahead

To quote the great mid-Twentieth Century philosopher Gomer Pyle: "Surprise! Surprise! Surprise!"

The New York Times reported Saturday that consumers are having a difficult time figuring out what they are paying for bandwidth these days (at least, those consumers where there is genuine competition for bandwidth!).

Here's the gist of the article in a few short paragraphs:
In more densely populated areas, many Americans now have not only a choice of broadband providers but also a range of different speeds to pick from. As the options proliferate, consumer advocates say it is getting tougher for people to tell what service is best for them — and which packages promise more than they deliver.

Confusing matters, broadband lines are increasingly being bundled with television and phone services, making it difficult to determine how much the high-speed connection actually costs.

The offers, consumer advocates say, are not always straightforward. With few exceptions, they include language that says consumers will get “up to” a certain speed, typically expressed in megabits per second. (An MP3 song file that takes 12 minutes to download over a dial-up line would take 27 seconds on a 1.5-megabits-per-second broadband line, and 8 seconds on a 5-megabit connection.)

In many cases, consumer advocates and industry analysts said, customers do not get the maximum promised speed, or anywhere near it, from their cable and digital subscriber line connections. Instead, the phrase “up to” refers to speeds attainable under ideal conditions, like when a D.S.L. user is near the phone company’s central switching office.

“They don’t deliver what’s advertised, and it’s inherently deceptive,” said Dave Burstein, editor of DSL Prime, a newsletter that tracks the broadband industry. “ ‘Up to’ is a weasel term that should be taken out of the companies’ vocabulary.”

The companies argue that their marketing is not misleading because the speeds they promise can actually be reached.
I don't know what BellSouth is charging for DSL these days -- and I'm not interested.

I am, however, a Cox customer for video, voice and data. The speeds Cox delivers varies wildly here in my part of town and the modem needs an inordinate amount of resetting from time to time. I've tested the speeds using various 'connection speed' sites and don't ever recall getting any speed near the x-megabit speeds that come with the package (they say the speed's been updated recently, but I haven't noticed it).

So, for now — like a lot of folks across the country — we're all stuck paying premium prices for sporadically mediocre Internet speeds. Getting the LUS fiber project built would change all that, but we find ourselves at the mercy of courts.

Thursday, November 16, 2006

Fun and games

The actual title of the Advocate article is "Not all fun and games" but what fun is that? I'm afraid that characterization derives from a teacher making the nervous mistake of apologizing for his student's enjoying learning when it would be more appropriate to apologize for the prevalence of the everyday, normal, industrious, and boring class the guest probably expects.

The class in question is at ULL and the embarrassingly fun subject matter is video games. The story covers the relatively new video game concentration housed in the department of computer science. The article's core description:

The video-game concentration, first offered last year, has quickly gained in popularity and has about 40 majors, Etheredge said. “It’s attracting a lot of students,” he said. “It’s one of the few things that get students excited about college.”

Those who choose to pursue the program are required to take a broad range of classes: a foundation of computer science and math courses plus a video-game specific curriculum that includes electives in computer animation, creative writing, artificial intelligence, camera production and theater.

“Games bring together all of those,” said Timothy Roden, who teaches a class in three-dimensional game design
That sort of interdisciplinary work that leads to the "making" of real, even when virtual, things is the most exciting learning environments available at any university--and is the sort of experience that most students don't get a crack at until graduate school.

Lafayette is lucky to have a program like this available. Gaming, with its bandwidth expensive underactivity and graphics is one the drivers behind the demand for fiber-optic networks. With the promised 100 megs of insystem connectivity (all subscribers will be allowed to connect to each other at the full available capacity of the system) Lafayette will be a great place for new games to be developed and tested.

What the Democrats' Win Means for Lafayette Tech

c|net publishes a timely story on the effect of the Democrats' capture of the House and Senate on tech-related policies. The National Journal has a similar article focusing solely on telecom matters. (See also: Buisness 2.0) As you might expect the effect is mixed--favorable for many, unfavorable for others, and dependent on which part of the tech sector you occupy for yet another set. On most telecom topics of interest to the Lafayette community this change will likely prove a good thing both in the short and long term.

Short Term: Stevens' Telecom Bill
In the short term Senator Stevens' comprehensive Telecom bill is almost certainly dead. Stevens (he of "the internet is a series of tubes") had been unable to push a bill that catered extensively to corporate interests through the Senate after it hung up on the then-majority's refusal to include net neutrality provisions. He blamed the politics of the midterm election for its demise (normally party-line Republican votes apparently didn't want to stir up net activists against them right before an election).


Stevens had defiantly promised to take it up during the lame duck session when the will of the people wasn't such a troublesome factor. With the apparent death of that bill dies the threat that a major overhaul of telecom law will be possible without some measure of net neutrality. Gone as well is the threat of a national video franchise clause that would "federalize" local state and municipal rights of way by setting extensive conditions the freedom of local governments to write contracts controling their own property. The most onerous of those conditions would have been a ban on cities requiring corporations that want to use the people's property to serve all the people--not just the most profitable faction.

Both the net neutrality issue and the video franchise power grab would have had real effects on Lafayette's fiber build.

Net neutrality is, at its root, about allowing the few large corporate owners of the current networks to use their size and control of current networks to favor their own products and those that "partner" with them over those of their competitors. Data from Cox's propietary search engine would be given "packet priority" over Google's for instance and hence would work faster. That bad for users and the outcry has been enormous on that ground alone. But by the same token it would be bad for any small local provider of network services (like LUS or EATel) whose size and lack of vertical integration makes playing similar games with its customers impossible.

The video franchise power grab would have allowed both Cox and BellSouth to only compete for the most profitable local consumers, leaving the lower margins on all those "low value" consumers to LUS. Since LUS will offer service all of its citzen-owners that would leave the small local corporation at an unfair disadvantage. (Citizens should take note: expect another go at this issue in the next state legislature. Only Blanco's veto of a state franchise bill with the same onerous build out provisions as the proposed federal law saved us last year.)

Intemediate Term: Regulatory Atmosphere and the AT&T-BellSouth merger
The regulatory bodies of the federal government wield an inordinate amount of practical power. In many areas Congress and the Courts have all but ceded practical law-making and interpretation of the law to regulatory bodies. The Federal Communications Commission (FCC) is one place where this has been especially noticeable. This is intensely political and in the absence of any countervailing Congressional oversight the pro-corporate, anti-regulatory assumptions of the Bush administration has controlled. The same laws that lead earlier regulatory bodies to successfully pursue breaking up AT&T are now interpreted to allow AT&T to gradually reconstitute itself. The bid to take over BellSouth is part of the shift.

Here's what c|net calls the "Bottom line:"

Some fear a supersize AT&T could jack up wholesale line-leasing rates it charges to smaller carriers--a cost that would ultimately be passed on to consumers.
The new AT&T will be most dangerous in the way that it reduces competition in the backbone, long haul business. Lafayette is lucky enough to lie at the intersection of an unusually rich set of fiber optic networks--extensive fiber from mulitiple providers runs down I-49, I-10, and the railroad tracking southeast to New Orleans providing multiple ways to reach the vastness of the internet. That's lucky because it will allow LUS to bargain aggressively for lower costs in a way that is not available to many communities. But even in our enviable position consolidation has meant fewer choices. The AT&T network will not be a practical choice for LUS when it buys BellSouth. Similarly but less dramatically the deal that Sprint-Nextel has entered into with the cable companies to provide cell phone services to a consortium that includes Cox likely removes it from the group of companies that are willing to bargin aggressively to win LUS's business. In the long run consolidation of the long lines means smaller companies and local communities will see less competition for their business...and, inevitably, their customers will pay higher prices for their connections than they would otherwise. Allowing the telephone companies to recombine into a few huge networks clearly has detrimental effects on competition--and frankly in any other regulatory regime before the one fostered by the current administration and its recent Congressional leadership it is doubtful that such consolidation would be allowed.

A prime complaint against the Republican Congress has been that it has not meant its constitutional obligations to provide oversight. While most who level that charge are thinking of no-bid contracts in Iraq and the gulf coast or the conduct of the Iraq occupation the concern is actually much larger. Regulatory bodies have also been allowed to go their own way without any Congressional oversight. Congressional hearings on so major a consolidation as the upcoming AT&T-BellSouth merger would have once been considered obligatory. An FCC board of commissioners that strayed very far from the law or the will of Congress found itself in very hot water. The incoming Democratic committee chairs are promising to renew Congressional oversight of the federal apparatus.

In the new atmosphere the FCC may find it wise and AT&T may find it politic to agree to net neutrality conditions on its merger that the Democratic minority on the FCC has demanded and AT&T has resisted. Too much resistance might well earn it a round of hearings that would be very uncomfortable for all concerned.

Long Term: Committee Chairmanships

Most of the longer term (2 year?) effects of the changing of the guard will be a result Democratic control of key committees. Committee chairmanships will be taken over by the former "ranking minority" members of both the House and the Senate. In addition, a number of those who lost their seats were among the strongest supporters of the corporate position on various telecom issues. (For instance the two close races whose loss gave the Democrats the senate were Sens. Conrad Burns of Montana and George Allen of Virginia. Both these men sat on Stevens' Commerce Committee and were ardent supporters of Stevens' bill.)

The new chairs have, by and large, a well-defined position and voting history on major telecom issues. They tend to be much more pro-consumer than the men they replace, a situation which aligns them more nearly with Lafayette on the issues important here.


In short, at least for the telecom and tech issues that most directly effect Lafayette, the shift in Washington doesn't look bad.

Tuesday, November 14, 2006

"LUS says court ‘tilted’ law against cities"

The Advocate headline says it all: "LUS says court ‘tilted’ law against cities." That's pretty much the whole story. Recent briefs filed with the Louisiana Supreme Cout argue that the third circuit has erred by taking a compromise and transforming it into a tool that the incumbents can use to block implementation of the plan the voters called for in July more than a year ago. That transformation involves ignoring the written intent of the law and the context in which it was passed. From the story:

This summer, the Louisiana 3rd Circuit Court of Appeal put a stop to LUS’ plans, saying the method that LUS planned to use to pay back up to $125 million in communications bonds violated the so-called Local Government Fair Competition Act.

That law was passed in 2004 at the behest of the telecommunications industry as a way to ensure a “level playing field” between privately owned and publicly owned communications businesses.

But the 3rd Circuit ignored the Legislature’s intent and is “interpreting the law so as to tilt the ‘level playing field’ against local governments,” LUS argues in a brief filed with the Louisiana Supreme Court.

Laws usually have preamble sections that establish the purpose of the law and detail its intended effects and the (un)Fair Act has an extensive section that lays that out. This section is often ignored as window dressing by lawyers and courts but has a serious and essential role in determining "intent." Legal interpretation is at least as difficult as every day interpretation--and determining what a sentence should be understood to mean often depends on hearing it with ear for the context and the intent of the speaker.

"Legislative intent" is the label given this legal principle but, as commonsensical as it may seem when that intent is written into the law, other theories of legal meaning that revolve around a literal reading of the text that is informed by nothing outside the text are often opposed to it. (If you see an echo of arguments over Biblical interpretation I'd say you are most likely seeing a similar pattern.) So, in the end, Lafayette's future may well come down to which camp on the arcane topic of theories of legal meaning a few men on the State Supreme Court belong.


As lagniappe:

As readers may recall these pages have always been adamantly of the opinion that the Local Government (un)Fair Competition Act is...unfair. It is bad for Lafayette and local governments that might want to follow in its footsteps. Mike Stagg, my partner here, went down and testified against it in the legislature when the official line was that this was a "good compromise." The Louisiana Supreme Court is the last hurrah for the interpretation that the law is reasonably understood as a fair compromise of any sort. Being right on this will be cold comfort. I'd much rather we were wrong.....

Wednesday, November 08, 2006

Clarksville, TN votes in Fiber; 72% vote Yes!

The Leaf Chronicle of Clarksville, Tennessee reports that the voters there voted in fiber by a 72 to 28 percent margin.

Clarksville voters overwhelmingly approved Clarksville Department of Electricity's bid to provide telecommunication services over a new fiber-optic network.

With the blessing of almost three-quarters of city voters, CDE in about six months will begin offering cable television and broadband Internet access over more than 700 miles of fiber-optic cable.

Interestingly apparently the city-owned electrical utility there, CDE, heavily emphasized the benefits to electricity customers of having a grid monitored by fiber. Those benefits were barely mentioned during the Lafayette fiber fight and certainly played no role in the eventual vote.

Clarksville's cable incumbent Charter and phone incumbent BellSouth did not impose an extensive battle on the community in the way they did in Lafayette. Charter is in real financial difficulties and BellSouth had its merger with AT&T on the table as this proposal spun up. That might have something to do with the relative lack of opposition. It might also be that BellSouth and the cableco's learned a lesson in Lafayette. I was contacted early in the campaign about helping with a battle there--but that battle apparently never really happened.

To my recollection this is the first fiber referendum to pass since Lafayette's -- recent muni broadband referenda have focused on wireless systems. But this should demonstrate that the appetite for real municipal broadband has not passed.

Welcome Aboard Clarksville!

Update 11:16--While noodling around the internet looking for info the Clarksville fiber network I ran into an interesting fact about Clarksville's plan: they're gonna run fiber to every home. Period. Wow.

The deal here is that they will be installing new "meters" to monitor electricity, eliminate meter readers, and provide the possibility of new services. These meters are also set up to provide phone, cable, and internet should the customer want to purchase those too. So their upfront costs will be greater but will presumably be borne at least in part by the electrical side of the utility--some part of the maintenance cost for the fiber will be borne by the electrical utility as well. For the record: more sophisticated monitoring and maintenance devices has long been a big issue with electrical utilities and the day of their arrival has been delayed often. The desire for such capacities has not been invented for the purposes of Clarksville--this was the idea behind the initial development of BPL--Broadband over Powerline, a perennial wannbe in the broadband races.

Clarksville's utility is so committed to the monitoring aspects that it is going to go ahead and build a fiber-optic monitoring system at a cost of about 72% of the total for a full telecom system even if the referendum fails. So the referendum becomes an issue of whether or not to put the system to use for the benefit of the citizens or or just use it monitor electricity--not whether or not the system will be built. The choice is between an 88 mill system with benefits and 73 mill (with interest) system without. Here's the way an article in the Leaf puts it:
Voters, then, technically will be making a $25 million decision as to whether CDE can offer telecommunication services in lieu of raising rates an estimated 3.5 percent to cover construction costs.
The political and fiscal advantages to taking this route are pretty obvious.

I'd think the downside aside from upfront costs would be that replacement costs and eventual telecom system upgrades would be more expensive than they would be otherwise. (If you've got a combo fax/printer/scanner you have to replace it all if the scanner goes down or if you decide that you need higher printer resolution.) But if the incremental cost of the monitoring module were small (and I expect it would be) and if it could be hung cheaply in a widely available commercial box that might not be a noticeable issue.

Well worth thinking on. Louisiana law does allow for shared costs.....and future muni fiber designers and their politcal backers might well want to consider the idea.

"Groups join Lafayette’s fight for fiber-optic plan"

There's a good article in today's Advocate that lays out, quite neatly, the history of the fiber fight in Lafayette. Blanchard, the Advocate's reporter on the story, provides the history as the backdrop to his discussion of the Fiber To the Home Council's (FTTH Council) friend of the court brief in support of LUS and the city of Lafayette.

Blanchard's analysis of the FTTH Council brief focuses on the loan structure of the Lafayette project. He notes that the so-called Fair Competition Act was supposed to provide a "level playing field but actually forced LUS to pay market-rate for loans from within the company that its private competitors would not have to pay for. But that (un)fair requirement is precisely what is under attack by the Naquin lawyers who want it eliminated in spite of plain language in the law that anticipated loans offered at fair market rate.

It is a twisty logic that the incumbents and their agents are arguing and it is astonishing that the 3rd circuit bought it.

We'll see the Naquin lawyers response on the 21st and oral arguments will be the 28th.

By the by, The article closes by expressing some doubt about the project:
During the delay caused by the lawsuit, interest rates have risen, but the cost of the technology has also fallen, giving officials hope that — with a favorable ruling — the communications project will still be financially feasible.
In truth, interest rates are still not above the level projected in the feasibility study. True, we'll be paying a lot more in interest than we would had the incumbents simply accepted the will of the people. There was a window of very low interest rates of which we should have been able to take advantage. But the current rates are no more than were originally anticipated. The silver lining is the rapidly falling cost of the sort of fiber-optic equipment that LUS is anticipating installing--due mostly to Verizion's large FTTH build in the US and to rapid FTTH deployment worldwide. As Laignaippe when our purchase is finally made we'll almost certainly get a higher base speed than the 100 megs we talked about during and immediately after the campaign—LUS will surely install the sort of equipment scheduled for the first upgrade several years out.

Saturday, November 04, 2006

"Election's Tally Holds Intrigue For AT&T Deal"

The prospect of BellSouth being bought out by AT&T has been a topic of discussion on these pages, much of it unhappy but resigned. Mostly this merger has been seen as a done deal--the prevailing regulatory atmosphere has been such that it was hard to imagine any merger that wouldn't be approved by the current administration with little concern for consumer concerns.

But in the last few days there has been chatter online about the FCC's inability to come to grips with the issue--the vote to approve the merger has been delayed three times. The problem is that the deciding vote, a recently appointed Republican, has recused himself from participation as a consequence of having recently worked with a company that has an interest in the outcome. The consequence is that the FCC has been deadlocked on a vote setting conditions for the merger with the Democrats on the panel holding out for conditions that would ensure that the reconstituted AT&T would not abuse its monopoly power to set high entry level charges and that it would adhere to the traditional common carrier rules--rules that enforce net neutrality. AT&T has balked at the latter condition. Scuttlebut had been that, given the overall climate, AT&T would get its way.

But that climate may be changing soon:

If Democrats gain control of the House or - though less likely - the Senate, that would change the regulatory climate for telecom mergers, analysts say.

"AT&T is taking somewhat of a risk (by holding out for the fewest conditions) in that potential success by the Democrats could embolden the opposition," Merrill Lynch analyst David Janazzo wrote in a note to clients.

If Democrats win the House, then in January they would take over the chairmanships of committees that oversee telecom regulation. Levin says congressional hearings then "wouldn't be fun" for AT&T.

That gives you one more thing to think about as the returns come in Tuesday night.

Friday, November 03, 2006

"Groups support LUS on network"

A second group has joined the Louisiana Municipal Association (LMA) in filling "friend of the court" briefs in support of Lafayette's fiber to the home plan. The Advocate this morning reports that the Fiber To The Home Council has joined the LMA, whose support had been previously announced.

Amicus curie briefs like these are important because they offer the court a broader and often more authoritative view on the issues brought before the bench. The current lineup offers points of view from the perspectives of the city, the state, and now the nation.

The new FTTH Council brief, I understand, was authored by Jim Baller. Baller is widely held to be the nation's most influential lawyer on the subject of broadband and has been a tireless supporter of the concept of municipal broadband. Baller has consistently promoted the idea of a national broadband policy--something few who follow the subject believes exists now--and holds that municipal broadband is an essential element in any practical plan to bring the US back to a competitive level of broadband speed and adoption. Baller was also involved in crafting the now infamous "Local Government (un)Fair Competition Act" and would certainly have a unique basis from which to explore the unanticipated consequences of the law that has been used to keep the fiber-optic network plan in court.

John Gallanger spoke to the paper on behalf of the LMA. I met him during the video franchise battle in Baton Rouge during the last legislative session and have respect for his obvious smarts. The LMA holds that the third circuits circuitous redefinition of bond law is dangerous to the bonding authority local governments have always enjoyed.


Point of personal privilege:

I look forward to giving these briefs a close read -- sometime after the election on November 7th. I'm supporting Mike Stagg for Congress....a candidate who actually understands these issues and showed his commitment to Lafayette's fiber plan in the clearest possible way: by assuming a leadership role in the fight to get it. Boustany was urged, repeatedly, to help co-sponsor a bill that would have provided federal protection for municipal broadband programs by forbidding the states to prohibit them or to author laws, like the (un)Fair Act, that effectively prohibit them. Mike's opponent has yet to utter discernable support for his home-town's most ambitious and embattled program, has voted against net neutrality, and just yesterday came up with a 25% score on C|Net's scorecard of votes in support of technology issues. That score put him in the bottom 5% of the house. From the point of view of a technology advocate he's not what a Lafayette that sees itself as a high-tech enclave needs.

Wednesday, November 01, 2006

Fiber plan saves Lafayette 2.5 Million?

The Advertiser online has a longish interview with Joey Durel. It's a bit odd in that it seems organized not around reporters questions but around redigested questions solicited from the papers "readers." If you've ever glanced at the tone the Advertiser has allowed to spring up around its online discussion forums you'll not be surprised at the unformed and vaguely hostile questions the process puts in Claire Taylor's mouth.

But what warrants mentioning the interview here is that deep into it Claire repeats a question about using money from LUS or the fiber project for roads. This, of course, is just dumb. That money is simply not available for anything else. (Elsewhere the same crew of questioners has made a big thing out of "dedicating" money.) This has been pointed out often and really is no longer reasonably viewed as an honest question.

What's interesting though is that Durel claims that even with expenses Lafayette is 2.5 million to the good on the fiber initiative. The idea is that the long delay between Cox rate raises in Lafayette--a delay no one else in the region experienced--can be attributed to not wanting to further offend Lafayette and fuel its already white-hot anger at the corporation while there was a chance the city might still back off.

That $2.5 million is an interesting number and pretty credible if you take into account just how much money Cox pulls out of the community every month. I'd dearly love to see the background figures on this.

Here's the interview segment that deals with fiber:
CT: Another said that hundreds if not million of taxes dollars have already been spent on the fiber project and planning and campaigning, fighting the legal battles, and the project still hasn't been built. Shouldn't that money been spent on roads instead?

JD: No. Let me state very clearly that money was not available for roads. As I stated earlier, in government, unlike you and me, if you have some money in savings, and you can't pay your house note this month you can take money out of your savings. In government, LUS has certain laws that regulate it. We can't just go to LUS and say you have some extra money. We want it. We can't go to the school board and say look you all have a property tax that you are getting a bunch of money and I know you have your needs, but I think we want the extra money this year. We can't go to LUS and just take money to build roads. It's against the law. What people don't realize is that the fiber project has saved this community, I just saw something in the last week or so, had saved the consumers in this community over $2.5 million.

CT: How's that?

JD: Because Baton Rouge received pricing increases on their cable that we did not receive.

CT: We did get increases.

JD: We got one recently. But they have gotten some before we did. But because we were talking about a fiber optic project we didn't have price increases. So in this community, we did some math, and found out we have saved this community $2.5 million, which is much more than we spent on legal fees. So I think it's money well spent. By the way, LUS hasn't caused the legal fees to be spent. People should not be mad at LUS for spending legal fees to try to do something great for this community. There are other people that that anger should be redirected at.