Mediacom and the City of West Des Moines are engaged in settlement talks regarding a dispute over the city’s construction of a $50 million conduit network.
Mediacom filed a lawsuit in December against the city, alleging it improperly used taxpayer-backed financing bonds intended to remedy urban blight and poverty to build the network exclusively for the use of Google Fiber. In a related move, the cable operator filed a petition asking the FCC to review the City of West Des Moines’ rights-of-way management practices.
The FCC originally asked for comments on Mediacom’s petition by Sept. 22, but agreed to push the deadline by 15 days to Oct. 7 following a request from the City and Mediacom. “The parties have participated in meetings in an effort to resolve their disputes. To date, the parties have not reached any substantive agreement on potential settlement, but they would like additional time to explore settlement,” they said in their joint filing. The Iowa District Court hearing the case issued an ordering staying it until today, Sept. 24.
Mediacom’s lawsuit alleged the West Des Moines City Council secretly negotiated a deal with Google Fiber and that the city falsely claimed the network would be open and accessible to all ISPs in the city. Other allegations in the suit include that Google’s primary statewide lobbyist was a member of the Council when the agreement was approved and that the Council failed to solicit competitive bids for parts of the construction process that Google Fiber is performing.
A couple comments have already come into the FCC on Mediacom’s right-of-way petition. Northern Dakota County Cable Communications Commission opposes it, accusing Mediacom of trying to hinder broadband deployment. “Granting Mediacom’s petition would establish dangerous precedent whereby incumbents would seek to use the Commission as a shield against competition—all to the detriment to residents and customers,” said a filing from the municipal joint powers cooperative formed by seven cities, including Sunfish Lake and West St. Paul.
The Minnesota Association of Community Telecommunications Administrators took a similar stance. “Mediacom is asking the Commission to take policy in the wrong direction by deterring public-private partnerships that could bring needed broadband competition to our Minnesota residents,” said the telecom lobbying arm, whose members include cities, Public-Education-Government (PEG) organizations, schools and industry supporters.
When the FCC asked for comment on Mediacom’s petition, it also sought comment on a separate rights-of-way (ROW) petition by Midwest telecom Bluebird Network. Bluebird told the FCC it has several current rights-of-way permits, as well as an overarching rights-of-way agreement with the City of Columbia, Missouri, through which the city assesses a rights-of-way fee of $1.91 per linear foot, with no cap on the total amount due. That means its fee structure will increase by more than 600% when it completes it network expansion in 2022. “Despite months of attempts to reach an agreement on an alternative fee and permitting arrangement, the City continues to insist on the payment of discriminatory and excessive fees,” said Bluebird, claiming the city’s fee structure violates Sect. 235 of the Communications Act.
ACA Connects weighed in on the Bluebird case this week, telling the agency it believes the provider’s claims warrant careful scrutiny. It laid out a legal structure for evaluating the claims, which include examining whether the per-linear-foot fee complies the FCC’s 2018 infrastructure order that limits such fees to actual costs incurred.
“ACA Connects supports policies that facilitate competitive entry into markets, but a ROW fee does not violate Section 253, as the Petition suggests, based solely on the fact that a provider’s ROW fee will increase significantly because the provider has expanded its network and uses a commensurately greater portion of the public ROW,” said the ACAC filing. “That said, the Commission should be suspect of a material fee increase where the provider does not impose significant additional costs on the government or where other factors suggest that the fee is not based on actual, objectively reasonable costs, is discriminatory, or is not competitively neutral.”