And Now We Wait...It's All Up To The Southern District Court of Appeals

Feb 19, 2014

As of 5pm last night (Feb 18), all documents have been submitted to the Southern District Court of Appeals regarding Poplar Bluff Internet (who used to own*) and the City of Poplar Bluff.

On January 3, Poplar Bluff Internet filed their Appellant Brief; on February 3, the City filed their Respondent Brief; and on February 18, PBII filed the final submission: Reply Brief. Unless they call for oral argument, it is now in the hands of a three judge panel. We are hoping that the court will take the issue up during their October session in Poplar Bluff. To my knowledge the judges have not been named.

Our appeal appears to contain a “case of first impression” on two different issues. First, regarding Missouri statute 392.410.7 which is specifically directed at cities who own municipalities and sell telecommunications; and second, is a procedural anomaly pitting a legal rule (55.33c) against a Missouri Statute (536.090).

One of the problems that we’ve had in this case over the last three years is trying to help people understand that Missouri has a definition for “telecommunications service” and it is nothing like the federal definition of the same phrase. The biggest break came in August 2013 when the Missouri Public Service Commission filed a joint stipulation order. In that public record the PSC clearly stated there was a difference between the federal and state definitions, and, there exist services which do not qualify as telecommunications service by the federal definition but do qualify as a telecommunications service under Missouri’s definitions.

THIS IS WHAT WE’VE BEEN SAYING SINCE THE BEGINNING OF THIS CASE!!!!!! What an amazing blessing to finally have a state agency on the record.

This difference in definitions has been handcuffing us because the City’s lawyers continue to argue a state statute using federal definitions. All of the Supreme Court cases (like NTCA v Brand X Internet, Verizon v FCC, etc) and FCC Rulings (like the 2005 Wireline Order) involving cable and DSL modems and Internet and telecommunications service, are using the federal definition of the term “telecommunications service” and do not apply to Missouri statutes using their own definition. I hope that it aids the Appellate judges in reversing Judge Ligons’ Summary Judgment against us back in 2011.

As for the second issue, the City was allowed to sue Poplar Bluff Internet before they had completed their administrative dispute hearing (ie, before they exhausted their administrative remedies). Rather than telling the City their lawsuit was not ripe, the judge allowed them to have the dispute hearing…two years later. Sadly, though, the City didn’t follow the Missouri Administrative Procedures Act (MAPA); but the judge allowed the City to use a MAPA statute of limitations to say their dispute hearing outcome was accepted because no judicial review was filed.

The problem the City has in their assertion is that they broke at least five MAPA requirements including not having a court reporter to record the hearing. With no transcript of the proceedings, the City had no record of my objections at the hearing. Our appeal tries to establish that you cannot use MAPA rules without proving that it was a MAPA hearing, and since there is no record of the hearing that is not possible. Therefore the trial judge should not have awarded Summary Judgment.

Additionally, since the City sued PBII before they exhausted their remedies, we argue that MAPA statute of limitations does not trump the court. My understanding of Rule 55.33c is that once a case has been filed with the courts, everything else related to that same case can be seen as occurring on the original filing date. An example of this would be that the City’s dispute policy requires the dispute hearing to be at the City Council meeting following the appeal, but it was actually held two years later. We couldn’t claim that it wasn’t a real dispute hearing because it wasn’t held “at the next meeting following the appeal” because the court’s rules trump that statute of limitations.

It has been exciting being involved in the preparation of the appeals documents. I cannot give enough credit to the amazing legal team at Kirby Law Offices in Doniphan. Derrick Kirby has done a superb job for Poplar Bluff Internet and if you are ever in need of legal help, please consider calling the Kirby Law Firm (573.996.4747).

*Because Poplar Bluff Internet owned when this case began, Bluff Technologies has given permission for the logo to remain on this graphic created in 2012.

  1. Jr.

    “Because Poplar Bluff Internet owned when this case began, Bluff Technologies has given permission for the logo to remain on this graphic created in 2012”

    That is an odd way to say you gave yourself permission to use it.

    1. Brian Becker

      Yea, you should have been in the hearing a couple weeks back where I was on the stand and Duncan was asking questions. If he asked a question of the CEO of Poplar Bluff Internet I would answer, but if he asked a question of Bluff Technologies President I would decline and if he asked a question to me personally I’d take the 5th. It was comical.

      As we’ve learned from experience, had we not “given permission” to use the logo to PBII then Duncan would have gone running to the judge saying — see, they used to represent Poplar Bluff Internet, Gimme Gimme Gimme — He’s tried twice now to steal from us, I have to be careful.