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Just weeks after San Francisco began to offer free wireless Internet access to anyone who could lug their laptop to Union Square, Mayor Gavin Newsom was thinking bigger. In his first state of the city address last fall, he declared, “We will not stop until every San Franciscan has access to free Internet service.” Now, a year later, the city’s staff is sifting through more than two dozen preliminary proposals from companies like Google, Cingular Wireless and EarthLink, which offer some ideas about how they can help make “universal, affordable” wireless Internet access here a reality. There’s a lot to think about. Many communities across the U.S. have already explored municipal broadband projects — some wireless, some not. And along the way, some have run into opposition — generally from service providers that stand to lose business — in the form of litigation, legislation or public-opinion campaigns. “I certainly wouldn’t say it happens in every case,” said Washington, D.C., communications lawyer James Baller of the Baller Herbst Law Group, whose clients have included local government bodies trying to launch public communications utilities. “It certainly happens in enough cases that one must assume that it could happen any time, or any place.” So, as San Francisco ponders the technological puzzles in its plans, like how to find a way around topographical challenges such as Twin Peaks, the city is also keeping its ear to the ground for potential opposition. “Everything we do, we think about, ‘If someone wanted to challenge this, how would we respond?’” said Chris Vein, acting executive director of the city’s Department of Telecommunications and Information Services. The city attorney’s office is advising him as his department vets the ideas the city has received so far. Vein says he’s already aware of proposed federal legislation that, if passed, could scuttle projects like San Francisco’s. Though none of the Bay Area’s existing service providers has voiced a challenge to San Francisco’s still-developing plans, the city isn’t discounting that possibility. “I am not aware of anybody who has said they will sue me if I go forward with this,” Vein said. “But I do know people are watching us very closely.” MARKET FORCES Municipal broadband proposals tend to draw the attention of private-sector competitors, such as telephone, cable and cellular providers, said Michigan telecommunications lawyer Jon Kreucher, who used to develop legislative strategies for cable companies, but now represents their competitors. In the Bay Area, cable company Comcast and phone provider SBC Communications both say the city’s plans don’t present a problem for them. Andrew Johnson, Comcast’s vice president of communications in the Bay Area, stressed that the market is already lively. “This is just one more competitor entering into the marketplace,” Johnson said. “We’re focused on the value war.” But Comcast does care about who finances the competition. “If it’s private dollars at risk, then we certainly look at that situation differently than if it’s taxpayer dollars that are trying to subsidize these ventures,” Johnson said. If tax dollars become involved in San Francisco’s plan, he said, Comcast would “vehemently oppose it” and make that criticism known to city officials. Asked if the company would consider anything more drastic, Johnson said, “I think we’re getting into the realm of hypotheticals there, and I know we don’t comment about hypotheticals.” At this point, San Francisco has made no financial or technological commitments. “We’re just trying to understand what the best solution could look like,” Vein said. Despite Newsom’s original call for “free” service, the city is now only insisting that prices be lower than current services — and affordable for disadvantaged residents and businesses. The city has said it’s considering a number of approaches, including a public-private partnership and making broadband a city service or new utility. So far, Google has snagged the most press for a proposal that includes a free basic level of wireless service. But it is only one of 26 companies that have offered ideas. City Attorney Dennis Herrera’s office confirmed it is working behind the scenes on the wireless project, but declined to comment on the potential legal issues or the nature of any advice it has given. According to telecommunications lawyers outside the project, though, an attack could come from a number of directions. “The wireless phenomenon is relatively new,” so the track record for opposing municipal wireless projects hasn’t crystallized, said Baller, the D.C. lawyer. He said the arguments on both sides of the broadband issue are virtually identical to those made during an earlier era when municipalities were seeking to develop their own electric utilities. Legal battles may focus on whether a government body can compete with, or support competition with, an existing provider, he said. There may be claims that a municipal government has an unfair advantage or that it didn’t jump through necessary procedural hoops. At least a few local governments across the country have been driven to court over their broadband ambitions. Cable giant Cox Communications, phone provider BellSouth and a citizens group in Louisiana forced a referendum when the city of Lafayette, La., proposed expanding its fiber-optic network. After voters OK’d the project in July, a suit by BellSouth and a separate class action challenged the project’s financing, according to a local newspaper. Along the same lines, Time Warner Cable sued North Kansas City, Mo., claiming the city had broken a state law that requires a public vote before a city can offer cable TV service. A federal district judge agreed with the city that the challenge was premature, but court records show the case is still on appeal. And in Utah, phone company Qwest Corp. has argued unfair competition in a suit against a consortium of local governments that wants to provide wholesale broadband service. The suit, still in its early stages, claims the government group could pass on savings from certain tax exemptions to its contract providers. Most challenges to municipal broadband seem to have been pinned to state laws, which can vary significantly, said William Marticorena, who heads the telecommunications group at Rutan & Tucker in Southern California. “It’s really hard to talk about a general line of attack because I don’t think there is one.” Some states restrict the ability of cities to get into the broadband business, while others might impose restrictions on financing or mandate level playing fields, he said. PLAN FOR A FIGHT Marticorena noted that many California cities already offer some area-specific wireless access, like that in San Francisco’s Union Square. “It remains to be seen what challenges, if any, we’re going to see” to citywide wireless projects, he said. Baller and Kreucher advise the local governments they represent to think way ahead. It’s important to anticipate how the laws might change before a project is complete and to take every procedural step carefully, Baller said. “The best thing they can do is candidly think of it as best they can through the eyes of people who will oppose the project,” Kreucher said. “And do the best job they can of creating a record, swaying public opinion [and] having the relationships necessary at state houses to ensure the success of the project.” By the beginning of 2005 at least 14 states had laws in place that restricted municipalities’ ability to provide public communications service, Baller said. About half those laws covered broadband. California may be somewhat unique because its state constitution specifically says that a municipality can operate public utilities to provide certain services, including “means of communication,” Marticorena said, adding that that protection might include broadband. On the other hand, he said, the state also has “extremely protective” environmental laws, which challengers might use to try to delay a project. State-level concerns may all be moot, though, if one side in the battle over broadband wins on Capitol Hill. Among at least three pending bills on the issue, one introduced this year would outlaw such state restrictions. At the opposite end of the spectrum, another bill would stop any state or local government from providing “any telecommunications, information or cable service” if a private company is already offering something “substantially similar.”

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