More About Our Case Against The City

Feb 16, 2013

I’ve had several people ask for more details regarding what’s being argued and discussed with our case against the city.

As I posted last month, the Judge ruled to rescind the ruling made in November giving us the opportunity to file our pleadings. In that ruling the Judge also stated that Poplar Bluff Internet would be required to pay any legal fees caused by our reasonable neglect.

A week later, the city filed multiple invoices totally $5100 in legal expenses from Carl Lumley and no expenses recorded by Wally Duncan. Both sides have weighed in on what should and shouldn’t be covered, including the fact that my lawyer only charged $1500 to research, prepare documents and attend the hearing in question. I expect we should have a ruling from the judge on what we need to pay within a few weeks.

In my opinion, Derrick Kirby has done a remarkable job of picking up where Paul Kidwell left off. Within 10 days of the Judge’s rescinding of summary judgment, Kirby filed four documents. One was a 46-page affidavit from me. Over the course of the past two years, I had been compiling all the places where the City had declared their network as a “Telecommunications” network. Filings they had made with the Missouri Public Service Commission, surveys they had filled out, DAR advertisements, council minutes with quotes from former Mayors and City Managers stretching back to 1999. My affidavit included each of those documents.

We also filed Additional Statement of Undisputed Material Facts. The City is now required to admit or deny each of these statements. I am actually looking forward to how they word their response.

We’ve been saying all along that the City sold us Telecommunications Services and they have been denying it. Now, we’ve shown that in their own words they called it Telecommunications over and over. Cities in Missouri who are also a municipal utility company are not allowed to sell telephone service but they are allowed to sell other telecommunications services. However, if they do they are required to do so on a competitively neutral basis and a price which covers cost.

Kirby also filed a Response to their Motion for Summary Judgment. In this document, he explains how the City’s dispute hearing ruling did not follow proper procedures of the Missouri Administrative Procedure Act. Additionally, he points out that Poplar Bluff Internet disputed all six bills from December through May but the City only responded to one of those disputed bills and the remaining disputes were ignored. The city’s own policy requires them to provide an answer within five days of each dispute, which they did not do, so each of those disputes should be considered resolved. Kirby writes:

As a result, pursuant to its own policies, the amounts due on those remaining bills are not due and owing and summary judgment is not appropriate as a genuine issue of material fact exists as to whether any money is owed.

Since the Court entered its interlocutory ruling, new evidence has come-to-light with respect to Defendants’ representations of its broadband network. The fact that the City of Poplar Bluff and the State of Missouri described and classified the network at issue as a “telecommunications network” for several years leading up to the events…the court should reexamine its earlier interlocutory ruling. It is certainly relevant that the City of Poplar Bluff made numerous representations that its network was a “telecommunications network” since it has taken the exact opposite position in this case.

Picking up a case as complicated as this one was a monumental task and Derrick Kirby has been nothing short of amazing. Of course, you never know how the Judge will hear all of this, but we continue to be optimistic as we plod forward.

  1. James L. McGinty

    Brian, i believe in what your doing. I really do! And i wish you the best of luck. However i still know in my heart that you owe me $52.00. Now with that being said; If you will donate $52.00 tword your fund for the fees, in my name, You will never hear me say you owe it to me ever again…and ill consider that history. Either way good luck with your fight!

    1. Brian Becker

      James, you cannot imagine the amount of grace I feel right now. I read your message as soon as I got up and it brought tears to my eyes. I am blessed to know that you are doing this. I made the donation just now (you are backer #9). As promised by the creator, GOOD is brought out of this world’s evil and here is an example since the grossness of this case has healed our relationship. Blessings!