Bristol, Va., Fights to Keep Data Net Alive

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Bristol, Va., last week continued in its fight to scrap a state law that prohibits localities from delivering telecommunication services to their citizens.

The city of 1,800 residents on the Tennessee border wants the Fourth U.S. Circuit Court of Appeals for the Western District of Virginia to deny the telecom industry's petition for a stay of a lower court decision that struck down the 1999 Virginia statute.

In its filing, Bristol claimed that the Virginia Telecommunications Industry Association had failed in its stay request to prove that its members would be "irreparably harmed" if municipalities are permitted into the telecom market.

The VTIA — which represents cable operators, wireless and local phone providers and long-distance carriers — countered that the association's argument meets the typical criteria for issuance of a stay.

"They say that we're weak in our argument that this would cause irreparable harm to our members," said VTIA executive director Earl Bishop. "Well, it's true that these things have not occurred. But the idea of a stay is to keep them from occurring."

Municipal governments in Virginia are precluded from offering any service that the state legislature has not specifically authorized.

But now the VTIA is battling a recent ruling by U.S. District Court judge James P. Jones, who found the Virginia law was at odds with the 1996 Telecommunications Act. Section 253 of that federal law prevents state and local regulators from enacting laws that have the effect of excluding "any entity" from the local telecom market.

Jones will hear arguments from both sides during a hearing this week.

Jim Baller, a partner with The Baller Herbst Law Group, a Washington D.C.-based law firm that represented Bristol, said any irreparable injury claimed by VTIA must be balanced against the harm to the town's residents.

"What's important is to balance the harm to the city if it's not allowed to go forward and develop services that people clearly want," Baller said.

The 1996 Telecommunications Act says state and local governments cannot enact laws that prevent "any entity" from entering the local market, thus protecting the public interest, he added.

"And it would not be serving the public interest if this was prevented from going forward," Baller said.

Bristol also claims the Federal Communications Commission erred in 1997 when it upheld a similar law in Texas.

The VTIA is arguing that its members will face a "permanent loss of customers," and "goodwill" if the state law is struck down.

In the wake of Jones's decision, Bristol has begun offering high-speed Internet access to area businesses via a $5 million municipally owned fiber optic telecom network. It also proposes to lease excess capacity to other outside businesses interested in entering the local market.

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