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.

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.)

“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.

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.”


“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.

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!

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.

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).

Sorry video no longer available at

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.