Poplar Bluff Internet service provider suing city utilities

POPLAR BLUFF, Mo. -- A lengthy dispute between Brian Becker and city officials concerning broadband Internet service has resulted in the filing of a lawsuit in Butler County Circuit Court.

Poplar Bluff Internet, Inc., owned by Becker and doing business as SEMO.net, is suing the city of Poplar Bluff and Municipal Utilities and City Cable for more than $1 million plus legal fees. A jury trial is requested.

Becker alleges SEMO.net "has suffered, and will continue to suffer, substantial losses as result of the defendants' wrongful actions, including lost customers, an inability to obtain new customers, lost goodwill, lost profits, attorneys' fees and damages resulting from substantial overbilling."

Count 1 alleges the defendants charge a price greater than their costs for access to the broadband network in violation of state law.

In Count 2, Becker asks the court to issue a declaratory judgment stating the defendants may charge only a price equal to their costs. He claims the rates charged by the defendants are unlawful and prohibited by state law, and access to the broadband network is a discriminatory and anticompetitive act barred by state law.

Becker alleges in Count 3 the defendants used improper means to interfere with his business expectancies by purporting to terminate his access to the broadband network and misrepresenting the city was subsidizing his business. He also is seeking punitive damages due to "substantial and irreparable harm."

In Court 4, Becker alleges the defendants "are engaging in anti-competitive conduct with the specific intent of monopolizing the broadband Internet market in Poplar Bluff."

On Nov. 19, 2001, the Poplar Bluff City Council approved a policy allowing local internet service providers, including SEMO.net, to offer broadband Internet over the city's broadband infrastructure.

In February 2006, Becker notified the city that its use was peaking at an amount greater than the 8 megabits per second limit for each open access user. On September 2007, City Cable notified Becker the city's network capacity had increased and each provider was allowed to sell a 3-megabit account. SEMO.net began peaking over 40 megabits.

In late 2009, Bill Bach, general manager of Municipal Utilities and City Cable, claimed the city was losing money through its open access policy and in January 2010 Bach recommended the Poplar Bluff City Council assess higher fees.

On May 14, 2010, Bach notified Becker that SEMO.net violated the 8 megabits limit in the original policy and was no longer allowed to upgrade speeds or add new customers.

Becker also alleged Bach's calculations to justify new rates "are grossly in error."

"We honestly believe the decision to close open access and kick the ISPs off the network is illegal and expect the courts to decide in our favor," Becker wrote in a message to his customers in January.

The lawsuit was filed late Friday afternoon, but the city was not served a copy until Wednesday. Becker is represented by attorneys Paul Kidwell of Poplar Bluff and Jonathan Dalton and Brad Ziegler of St. Louis.

City Attorney Wally Duncan and a telecommunications attorney, Carl Lumley of St. Louis, will represent the defendants.

Duncan issued the following comments Wednesday:

"Due to financial considerations, the City of Poplar Bluff has deemed it necessary to phase out its voluntarily granted Open Access Policy, whereby private internet service providers have been allowed to use the City-owned broadband infrastructure for their business purposes. All but one of these private internet service providers have acknowledged the City's right to take this action, and have accepted the City's decision in this regard. It is unfortunate that Poplar Bluff Internet, Inc., d/b/a SEMO.net, has not cooperated in the transition and has instead chosen to resort to litigation. The City is confident in its legal position in this matter, and of a favorable outcome for the citizens of Poplar Bluff."

Pertinent address:

Poplar Bluff, MO