|8th Circuit Rules in North Kansas City
Municipal Broadband Case
12/29. The U.S. Court of Appeals
(8thCir) issued its
opinion [6 pages in PDF] in Time Warner Cable v. City of North Kansas City,
a dispute between a municipality and a private sector service provider over municipal
provision of broadband services. The municipality won this round.
The City Council of the City of North Kansas City
adopted a resolution to construct a fiber-optic network that would provide data, voice,
and video to customers in the City. The City did not decide whether or not to also provide
cable television services. However, the City's own engineering firm recommended that
providing cable-television services would be necessary in order for the network to be
The relevant statute of the state of Missouri (Mo. Rev. Stat. § 71.970) provides in
part that "[n]o municipality may own or operate cable television facilities and
services unless approved by a vote of the people."
KCCP Trust, dba Time Warner Cable
(TWC), provides services in the City.
TWC filed a complaint in U.S. District Court
(WDMo) against the City seeking to enjoin the City from constructing its planned
fiber-optic network without a public vote. The District Court dismissed the complaint,
without prejudice, for lack of jurisdiction. The District Court concluded that the case
was not yet ripe, because the City had not yet stated that it would use its fiber-optic
network to provide cable television services.
See, April 4, 2005
of the District Court. (The phrase "without prejudice" means that TWC is not
barred from filing another complaint, for example, if the City decides to offer
TWC appealed. See, appeal brief [70
page PDF scan] of TWC and opposition
brief [40 pages in PDF] of the City.
The Court of Appeals affirmed. It wrote that the statute
"expressly prohibits municipalities from owning or operating cable-television
facilities unless the municipality's populace votes to approve the endeavor. The
pertinent question then is whether the City owns or operates such a facility or
is threatening to do so in violation of § 71.970(1). In order to own cable-television
facilities, the City would require the capacity to receive cable-television
signals for transmission over its fiber-optic network. It is factually
undisputed that the City's fiber-optic network is not connected to the required
head end facility to receive such signals nor is there any plan to acquire it."
The Court of Appeals continued that "Thus, Time Warner's statutory claim
rests on a contingent future event: the ownership or operation of a cable-television
facility by the City; therefore, Time Warner's claim that a vote is required under
Missouri law is not ripe in that the City does not currently own or operate a
cable-television facility because the planned fiber-optic network will not be capable
of transmitting cable-television signals and because the City recognizes that in order
for it to provide cable-television services a public vote would be required."
The Court added that "If the City seeks to upgrade the network
without a public vote, Time Warner may again seek a preliminary injunction."
While the Court of Appeals may consider the court case ripe at that time,
voters might consider the political issue moot at that time. That is, if the
City builds a fiber-optic network, and incurs the considerable expense that this
would entail, but makes no decision as to whether to offer cable television
service, it can avoid putting the issue before the voters. Then, after the
completion of the construction project, if it announces plans to offer cable
television service, it must put the question before the voters. However, the
only further costs to be passed on to taxpayers at that point would be the cost of
connecting to an existing head end facility, or constructing its own. Voters
would have little reason not to support the offering of cable television service
at that point.
TWC made this point in its brief. It wrote that "without holding the required prior
public vote until the money is spent ... it can present its plan to the voters as a fait
TWC is represented by the law firm of Lathrop &
Gage. The City of North Kansas City is represented by the law firm of
TLJ spoke with Jim Baller of the Baller
Herbst Law Group, which focuses on representing local governments in
telecommunications and broadband matters. He stated that the Missouri statute at
issue in this case "is pretty specific to Missouri". However, he added that
"another victory in an incumbent provider's challenge to a municipal provider is
Baller also stated that "we run into litigation in almost every one of our
projects". He noted, for example, that BellSouth has challenged a municipal
broadband project in Lafayette, Louisiana.
He added that the North Kansas City opinion is the second victory for
municipal broadband providers in two weeks. On December 16, 2005, a state court
in California issued a decision in Cebridge v. Nevada County. See,
following story titled "California Superior Court Rules in Cebridge v. Nevada
See also, Baller's
[PDF] titled "Deceptive Myths About Municipal Broadband". And see, story titled
"US Chamber Hosts Panel on Municipal Broadband" in
TLJ Daily E-Mail
Alert No. 1,160, June 23, 2005.
This case is KCCP Trust, dba Time Warner Cable v. The City of North Kansas
City, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 05-2265, an
appeal from the U.S. District Court for the Western District of Missouri, D.C.
No. 04-1119-CV-W-ODS, Judge Otrie Smith presiding.
|California Superior Court Rules in Cebridge
v. Nevada County
12/16. The Superior Court in California issued its
opinion [32 page PDF scan]
in Cebridge v. Nevada County, a municipal broadband dispute.
The Local Agency Formation
Commission of Nevada County approved an application of the
Truckee Donner Public Utility District to
provide broadband services to citizens within its jurisdiction.
Connections, a private sector provider of cable television and internet
access services, filed a complaint in the Superior Court for Nevada County,
which is a trial court in the state of California, against the Local Agency
Formation Commission of Nevada County, seeking to invalidate the approval.
Cebridge argued that, under the California Public Utility Code, a California
public utility district may not provide broadband services.
The Superior Court held that it may. It also rejected all other arguments of
Cebridge, and denied its request to invalidate the approval.
This case is Cequel III Communications I, LLC, dba Cebridge Connections v.
Local Agency Formation Commission of Nevada County, Superior Court of the
State of California in and for Nevada County, Case No. 70226, Judge Albert Dover
|8th Circuit Rules in Reciprocal Compensation
12/29. The U.S. Court of Appeals
(8thCir) issued its
pages in PDF] in Ace Telephone Association v. Koppendrayer, a
dispute regarding reciprocal compensation, or the costs that one carrier pays to
another carrier for completing its calls.
The appellees in the Court of Appeals are Ace Telephone Association and eight
other competitive local exchange carriers (CLECs) that compete with
providing local telephone service in the state of Minnesota
The appellants are Leroy Koppendrayer, who was sued in his official capacity as
Chairman of the Minnesota Public Utilities
Commission (MPUC), the other members, and the MPUC.
Qwest Corporation intervened in the District Court as a
defendant, and is an appellant in the Court of Appeals.
The CLECs and Qwest did not negotiate a reciprocal compensation agreement.
Rather, the CLECs initiated a proceeding before the MPUC to set the rate. It set
the rate at zero.
The District Court the held that the zero reciprocal compensation rate was
arbitrary and capricious, and a violation of
U.S.C. § 252(b)(5).
The Court of Appeals reversed the District Court. It upheld the zero rate on
This case is Ace Telephone Association, et al. v. Leroy Koppendrayer, et
al., U.S. Court of Appeals for the 8th Circuit, App. Ct. Nos. 05-1170 and
05-1171, appeals from the U.S. District Court for the District of Minnesota.
|Washington Tech Calendar
New items are highlighted in red.
|Friday, December 30
The House will not meet. It will convene for the 2nd Session of the
109th Congress on Tuesday, January 31, 2006.. See, Majority Whip's
The Senate will not meet. It will hold a pro forma session on January 3.
It will convene for the 2nd Session of the 109th Congress on Wednesday,
January 18, 2006. See,
2006 Senate calendar.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) regarding a petition for
rulemaking of 13 hearing impairment related entities. Their petition requests
that the FCC initiate a rulemaking proceeding to mandate captioned telephone
relay service and to approve internet protocol captioned telephone relay
service. The FCC's
Public Notice [PDF] states that "Captioned
telephone service is a form of telecommunications relay service (TRS) that
permits persons to simultaneously both listen to what the other party is
saying and read captions of what the other party is saying on the same device.
Presently the service is eligible for compensation from the Interstate TRS
Fund (Fund), but is not mandatory. The petition asks the Commission to
initiate a rulemaking for the purpose of making captioned telephone service a
mandatory form of TRS and approving Internet Protocol (IP) captioned telephone
service as eligible for compensation from the Fund." (Footnotes omitted). This
notice is DA 05-2961 in CG Docket No. 03-123. See also,
notice in the November 30, 2005, Vol. 70, No. 229, at Pages 71849 - 71850.
|Sunday, January 1
New Years Day.
|Tuesday, January 3
The Senate will meet in pro forma session.
Effective date of the Library of Congress'
Copyright Royalty Board's rules changes
that provide for a cost of living adjustment of 4.3% in the royalty rates paid
by colleges, universities, or other nonprofit educational institutions that
are not affiliated with National Public Radio for the use of copyrighted
published nondramatic musical compositions in the BMI, ASCAP and SESAC
notice in the Federal Register, December 1, 2005, Vol. 70, No. 230, at
|Wednesday, January 4
Deadline to submit to the Library of Congress'
Copyright Royalty Board petitions to
participate in its proceeding commenced at the request of
XM Satellite Radio. The purpose of this
proceeding is to determine the reasonable rates and terms for the transmission
and ephemeral recording statutory licenses that would apply to a new
subscription service that performs sound recordings on digital audio channels
programmed by the licensee for transmission by a satellite television
distribution service to its residential customers, where the audio channels
are bundled with television channels as part of a basic package of service and
not for a separate fee. See,
notice in the Federal Register, December 5, 2005, Vol. 70, No. 232, at
Pages 72471 - 72472.
|Friday, January 6
12:00 NOON. The Federal Communications
Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host
a lunch. There will be a debate regarding municipal WiFi networks between
(Progress & Freedom Foundation) and Harold Feld (Media Access Project). See,
registration form [PDF].
Location: Sidley Austin, 1501 K Street, NW.
4:00 - 7:00 PM. The
International Trademark Association (INTA)
will host a symposium titled "Should Parma be a Trademark? Issues
Surrounding Geographical Marks and Indicators". The speakers will be Roger
Schechter (George Washington University Law School), Lionel Bently (University
of Cambridge), Min-Chiuan Wang (Institute of Technology Law, National Chiao-Tung University
in Taiwan), and Glynn Lunney (Tulane University School of Law). See,
Deadline to submit reply comments to the
Office of the U.S. Trade Representative (USTR)
regarding the operation, effectiveness, and implementation of and compliance with
(1) the World Trade Organization (WTO) agreements
affecting market opportunities for telecommunications products and services of the
U.S., (2) the telecommunications provisions of the North American Free Trade
Agreement (NAFTA), (3) the U.S. free trade agreements (FTAs) with Chile, Singapore,
and Australia, and (4) any other FTAs coming into effect by January 1, 2006. See,
notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at
Pages 69621 - 69622.
|Monday, January 9
12:00 NOON. The
Senate Judiciary Committee (SJC)
will begin its hearings on the nomination of Judge Sam Alito to be a Justice
of the Supreme Court. Location: Room 216, Hart Building.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Sharp Kabushiki v.
ThinkSharp, Inc., No. 05-1220. This is a dispute regarding registration of
the mark "Thinksharp" for computer software by ThinkSharp, Inc. Sharp,
which makes electronics products, objects. Location: Courtroom 201, 717 Madison
The Federal Communications Commission
(FCC) will begin a mock auction for its FM Broadcast Construction Permits Auction (Auction
No. 62). See,
Public Notice [PDF] numbered DA 05-3204, and dated December 21, 2005.
|About Tech Law Journal
Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All