Connecticut Regulator Rendered Muni-Broadband Law Meaningless, Court Told

Law reserves a space on poles for municipalities to use “for any purpose” without charge, but telecom companies argued successfully to PURA that any government communications usage must be internal. PURA interpreted Connecticut General Statute Section 16-233 to restrict third parties from connecting to a muni broadband network in the municipal gain and ban localities from granting the right to locate facilities in the space (see 1805090049). Defendants’ briefs are due Dec. 7; plaintiffs may reply by Dec. 21. PURA and CTIA didn’t comment.

“So many people do not have access that it’s profoundly affecting real estate values” in Connecticut’s rural northwest, said Bill Vallee, Connecticut State Broadband Office broadband policy coordinator. It could be up to six months before the Superior Court rules, OCC Principal Attorney Joseph Rosenthal told us. This type of case is usually appealed to the Connecticut Supreme Court, skipping the appellant level, he said. Connecticut Consumer Counsel Elin Swanson Katz said she plans after the election to talk to Connecticut’s next governor and attorney general about the issue. The Cook Political Report rates the open-seat gubernatorial race a toss-up.

“PURA has no legal authority or proper basis for adding the gloss” there are limits to statutory language saying the space can be used “for any purpose,” OCC said. Municipalities used the space for internal communications before lawmakers amended law to clarify the space may be used for any purpose; PURA's interpretation would render the change meaningless, the consumer office said. PURA inappropriately cited a responsibility under federal law to promote telecom competition, OCC said. “Recent federal rulings have confirmed that broadband services do not qualify as 'telecommunications services' regulated by PURA but are instead information services not subject to state regulation.” It doesn't protect municipal rights under Connecticut’s Home Rule Act, OCC said.

PURA's interpretation “is contrary to well-established principles of statutory construction,” said Sharon, Connecticut. PURA had no factual evidence competition is healthy in all 169 towns or that allowing muni broadband would reduce competition, the town said. Sharon town officials repeatedly and unsuccessfully asked Comcast to complete a build started in 2007, so many residents and businesses have no broadband, it said. If the court won’t overturn PURA’s decision, it should remand the matter to gather facts on telecom competition, the town said.

The proceeding was "fraught with numerous procedural errors contrary to, or otherwise in violation of, the Uniform Administrative Procedure Act ("UAPA") and PURA's own regulations,” said the Connecticut Conference of Municipalities and localities New Haven, Manchester and West Hartford. "PURA substituted its own judgment for that of the duly elected officials of 169 Connecticut cities and towns," contradicting state law, the municipalities said: It would "have an overall adverse effect on the State's broadband services.”

“Frontier Communications remains confident in the merits” of PURA’s decision, said the ILEC’s spokesperson. “It is supported by state and federal law and ensures a continued level playing field.” The New England Cable and Telecommunications Association strongly supports PURA's ruling and hopes the court affirms it, said Policy Counsel Timothy Wilkerson. Muni broadband is clearly impermissible in the municipal gain space, he said.