December 1, 2011
Brendan Greeley and Alison Fitzgerald have authored an in-depth exposé of the role the American Legislative Exchange Council (ALEC) played in passing a law in Louisiana designed to cripple community-owned networks ... while falsely claiming the bill was about creating a "level playing field."
This article may not have been possible without the work done by the ALEC Exposed folks at the Center for Media and Democracy.
The aptly-titled "Pssst ... Wanna Buy a Law?" article starts with the background of one of our favorite community broadband champions: Joey Durel, the Republican City-Parish President of Lafayette, Louisiana.
In April of 2004, Lafayette announced their intention to do a market survey to get a sense of whether the community would be interested in a publicly owned FTTH network run by the public utility. By that point, it was not possible to introduce new bills at the Louisiana Legislature. Or at least, that is a technicality when it comes to the lobbying prowess of big cable and telephone companies (mainly Cox and BellSouth - one of the major companies that later became AT&T).
Worried about losing their de facto monopolies, they tapped State Senator Winnsboro to take an existing bill, delete all the words from it and then append their anti-community broadband (anti-competitive) language.
The lobbyist brought back to Lafayette a copy of what would become Senate Bill 877. It named telecommunications as a permitted city utility, then hamstrung municipalities with a list of conditions. It demanded that new projects show positive revenue within the first year. It required a city to calculate and charge itself taxes, as if it were a private company. Cities could not borrow startup costs or secure bonds from any other sources of income. The bill demanded unrealistic accounting arrangements, and it suggested a referendum that would have to pass with an absolute majority. It also, almost word for word, matched a piece of legislation kept in the library of the American Legislative Exchange Council. The council’s bill reads, “The people of the State of _______ do enact as follows … ”
According to Ellington, he substituted the bill after a lobbyist for several of the state’s cable companies approached him, concerned about Lafayette’s project. Ellington’s district did not have plans to run fiber. Nor did any other city or parish in the state. “We were just making sure that the field was level,” he says. “We weren’t trying to keep them from doing what they wanted to do, we just wanted to make sure the public entity couldn’t go in and shortstop the private entities.” Ellington is probably sincere about that. The lobbyist who came to him probably wasn’t. The bill was not designed to level the playing field. It was designed to keep new teams on the sidelines.
The story goes on to track this bill back to Utah in 2001 (when Comcast and US West (later Quest and now CenturyLink) wanted to outlaw communities from building their own networks -- often in areas the private companies had refused to offer access to the Internet anyway). ALEC serves to spread those bills around the nation. When enacting corporate agendas, legislators prefer to get their bills from a nonprofit (ALEC) as opposed from directly from the corporations. Nevermind that the same corporations still write the bills and fund ALEC. It is sufficiently removed for what passes for democracy in America.
The bill passed. Lafayette managed to remove some of the ALEC bill’s barriers to entry but, as Huval had predicted, the law embedded into Louisiana code a set of handholds for future litigation. BellSouth and Cox Communications called for a referendum in Lafayette, which the law only suggests. The city’s attorney determined that the petitions to force a referendum did not meet the city’s standards, and BellSouth sued. Lafayette lost on appeal, paid for a referendum, and BellSouth ran ads against approving the project. (According to KLFY, a local television channel, Cox paid for a phone poll that suggested a government-owned provider might ration television on Tuesdays, Thursdays, and weekends.) Lafayette tried to issue bonds, and BellSouth challenged them. By 2007, when the Louisiana Supreme Court upheld the bond issue, Huval estimates that the city had paid $4 million in legal fees, more than the cost of the original fiber ring. A spokesperson for AT&T, which now owns BellSouth, says the company has backed away from BellSouth’s aggressive approach. But the damage is done. As with Utah, no other city in Louisiana has attempted to follow Lafayette.
According to data provided to Bloomberg Businessweek by the Sunlight Foundation, which posts government information online, state legislators who have signed on to sponsor the ALEC bill limiting municipal telecommunications have tended to receive donations from local cable and phone incumbents, as well as rural telephone associations. The pattern is consistent across states. In North Carolina, where the bill passed in May of this year after four attempts, these companies and groups consistently gave more money to the bill sponsors.
Noble Ellington hasn’t followed what became of his bill. “I just hope we fixed it,” he says, “so private industry and the city and parish were satisfied with what we did.” Terry Huval and Joey Durel both travel around the country now, talking to other small towns about how to get wired. Durel believes it’s going to get worse before it gets better. Huval is working with towns in nearby states but won’t say where. When a plan goes public, he explains, a bill—that bill—is not far behind. ALEC’s model bill on municipal broadband works because the idea of a city providing Internet access is alien to even most lawmakers. If a bill shows up at the right time, in response to one or two cities, it smothers an idea that hasn’t yet gathered many defenders. “I tell people this is not for the faint of heart,” says Huval. “If you don’t have the drive, don’t even start.”
We deeply covered the fight in North Carolina's legislature funded by Time Warner Cable. The bill in North Carolina was carried by ALEC members.
Most of the state laws restricting community broadband initiatives are included on this preemption map.
This is the kind of story that should be forwarded to elected officials. We are likely to see more of these cable and phone company attacks on local freedom next year than we have in any other year since 2005. We need to prepare and educate ourselves.
You can read our previous coverage of Lafayette here.