Internet-access lawsuit against Poplar Bluff fails

Sunday, December 4, 2011

POPLAR BLUFF, Mo. -- Brian Becker's attempt to sue the city of Poplar Bluff for $1 million over open access Internet services has failed.

Carter County Circuit Judge Michael Ligons has granted the city's motion for a summary judgment against Poplar Bluff Internet Inc., owned by Becker and doing business as

"We are very pleased with the judge's decision" was the reaction Friday from city attorney Wally Duncan and city manager Doug Bagby.

While Becker was disappointed with the ruling, he said, "It was not unexpected. We have felt it was going to have to be appealed, and we plan to file an appeal."

Ligons denied the city's request for summary judgment on the city's counterclaim to collect more than $200,000 from Becker in unpaid bills and penalties.

"We will proceed with the city's counterclaim in court," Duncan said.

In his March 18 lawsuit, Becker alleged the decision by the Poplar Bluff City Council to terminate its open access policy was "wrongful and resulted in damages to his business."

The city filed the motion for a summary judgment and a hearing was conducted Sept. 15. Judge Ligons took the case under advisement before making his ruling, which was released this week.

"We felt all along the statutes the plaintiff was trying to cite did not apply to the city," Duncan said. "The city was acting within the authority granted to it by the state statutes. We felt upon review the court would agree that there was no case to be made against the city."

Duncan commended telecommunications lawyer Carl Lumley of St. Louis for "doing an outstanding job of representing the city's position."

Becker was represented by attorney Paul Kidwell of Poplar Bluff, who argued the city's motion for a summary judgment should be denied for a variety of reasons.

Kidwell contended the city does "provide telecommunication services via their infrastructure" and is subject to Missouri Public Service Commission regulation. He requested more time for discovery to prepare his case.

The city argued the Federal Communications Commission has determined that Internet access services which the city previously provided to Becker are not intrastate telecommunication services subject to state PSC regulation, but are broadband Internet access services. The U.S. Supreme Court has upheld the FCC determination.

Kidwell also maintains Becker had "a valid business expectancy to receive services at or near cost" from the city. He argued the city "intentionally interfered with that expectancy by terminating open access for illegitimate reasons." Becker disputed the city's costs for providing Internet services.

The city contended Becker "could not, as a matter of law, have a valid business expectancy of never-ending and/or cheap access to the city's cable system and Internet access services."

City council members lawfully exercised their discretion when they set the rates for Internet access services and when they later decided to stop offering the services to Becker and other private enterprises, according to the city's motion.

Kidwell also argued the motion should be denied because the city had a monopoly.

Counsel for the city maintain "there is absolutely no evidence the city has any form of monopoly over access to the Internet." The private companies, including Becker's, that did obtain Internet services from the city have continued to provide Internet services by other means, according to the city's motion.

The city also contends "there is no evidence the city made any long-term commitment" to Becker.

Pertinent address:

Poplar Bluff, MO

Map of pertinent addresses

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