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Commissioners for Broward County, Fla., basked in a national media glow in 1999 when they passed a groundbreaking ordinance aimed at forcing reluctant cable companies to open their high-speed Internet access lanes to competitors. Now, down 1-0 in the courts, the commission is poised to jettison its hard-fought, ostensibly pro-consumer law as part of a walk-away deal to end an embarrassing lawsuit brought by angry cable companies. The cable companies contended in the 1999 suit in U.S. District Court in Miami that they were entitled to the speech and press protections of the First Amendment and that the county did not have the power to decide what programming would be available on their systems. The settlement, recommended by the county’s lawyers, was scheduled for a vote last week. But at the last minute, County Attorney Ed Dion yanked it from the agenda. “We thought we had a deal, but you know how lawyers are,” says Dion. “They’re trying to squeeze some money out of us.” But one of the county’s adversaries in the suit says what’s really happening is a ploy by the county to protect its politically connected partner in the litigation, GTE, now a part of Verizon Communications. U.S. District Judge Donald M. Middlebrooks struck down the “Internet Broadband Open Access Ordinance” — passed over the objections of county staffers — in November as an unconstitutional violation of free speech guarantees. The ruling drew scant media attention. Dion says the county is willing to abandon its appeal to avoid potential financial liability. He also says the county is encouraged because the Federal Communications Commission “seems willing” under new leadership to consider imposing the same open access requirements embodied in the ordinance. Dion remains optimistic a deal will be cemented quickly and come back before commissioners for approval very soon. Maybe. But Terry Bienstock, the Miami lawyer who represents plaintiff Comcast Cablevision, offers a different picture of what’s happening. “We didn’t agree to the settlement,” says Bienstock, of Bienstock & Clark. “If they drop the appeal, we’ll walk away, but not from $300,000 in attorney fees.” The other major plaintiff, AT&T, has agreed to settle. AT&T is now the biggest cable provider in Broward after its purchase of Comcast’s Broward cable system closed on Dec. 31. Now, you might think that Broward County, as the losing defendant, would be on the hook for legal fees. But it won’t be, thanks to an exotic pre-suit indemnification deal in which GTE agreed to pay all litigation costs the county incurred defending a law it supported as a way to boost its Internet access business. The arrangement, however, puts the county in the dubious position of having its policy decisions defended by a special interest with possibly conflicting needs. Indeed, GTE did more than merely pay the county’s costs; it actually directed who did the county’s lawyering. When getting the law passed was the goal, Alan Becker and his politically connected Fort Lauderdale law firm, Becker & Poliakoff, did the quarterbacking. The firm even drafted the ordinance, according to Judge Middlebrooks’ order. Now, the lead counsel for the county is Andrew G. McBride, of Washington, D.C.’s Cooper Carvin & Rosenthal. McBride has represented GTE in numerous matters across the country. County Attorney Dion said his office has had minimal involvement. “We called the county on this directly and they told us to speak to Mr. McBride,” said Bienstock. “I don’t know why we are talking with McBride. Our franchise agreement was with the county, not GTE. We shouldn’t be in the position of negotiating government issues with a competitor. It’s a very odd situation.” The upshot is Bienstock’s assertion that the county isn’t settling the case because it’s protecting its litigation pal, Verizon n�e GTE. “They just want to let GTE get out of paying these fees and costs. That’s the bottom line,” says Bienstock. Bienstock’s got a point. The settlement proposal pulled from the agenda last week contained a clause obligating the cable companies to waive their right to fees and damages. The county doesn’t need that. It’s got an ironclad indemnification agreement to cover any costs like that. No, Verizon/GTE needs that clause because it’s on the hook. Without the clause, the county could end the case. But with Verizon/GTE’s lawyer at the helm, the county’s hopes of settling may not go anywhere soon.

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