Wednesday, August 09, 2006

Festina Lente

On August 8, 2006, I attended a preliminary hearing on Verizon Maryland, Inc. v. Montgomery Co., MD.

As a reminder, Verizon's lawsuit asked for:
... a preliminary injunction invalidating Montgomery County's current cable franchising law and directing the county to negotiate a franchise with Verizon on lawful terms within 60 days. At the same time - in an effort to help speed the negotiations to resolution - Verizon is asking the court to invalidate the numerous unlawful requirements the county is attempting to impose on the company.
As I looked around the courtroom, I concluded that were this a simple guilty / not guilty case, I'd have had to bet on Verizon based on the number of people alone. I counted 13 people representing VZ versus 6 from the county. But except for lawyer's bills, things are never that predictable.

Fere Libenter Homines Id Quod Volunt Credunt

Despite my fear that the judge would make some superficial action such as throwing the whole thing out or granting a continuance, the judge dived right in to the meat of the case. Although he didn't appear to be up to speed on everything, he at least recognized the basic positions of the two parties and why agreements were not fast in coming.

As I munched my popcorn, the lawyers brought up various precedents (which they proceeded to misinterpret or otherwise abuse) that, while interesting seemed, to me at least, to demonstrate why so much law is just garbage and why English is a terrible way of expressing anything definitively. (And, de facto, Latin doesn't help.)

I'm not going to go through the individual arguments except to say that the judge listened to a few of the disagreements and in each case pointed out that, at least in spirit, there was agreement but for the sloppy language in the existing franchise or the federal cable act.

And with that ("that" having taken several hours), the judge denied the preliminary injunction but ordered that the court will appoint a mediator (a magistrate judge who is not a resident of Montgomery County or Baltimore) and that Verizon will be directed to file its application immediately, in parallel, and without a negative impact on the case.

Rather than mediating all issues simultaneously, the judge specified that issues would be mediated one at a time - or however would best make progress. The mediator would have no specific power (i.e., not binding arbitration); however, if the mediation failed, the parties would then return before the judge who could make a definitive ruling, even potentially throwing out sections of MC's cable-related code or taking some action that would cause Verizon to forfeit its $450K filing fee. Given what each side has to lose, it makes sense for the parties to work cooperatively and a neutral mediator could be helpful.

I said "could" because while the proceedings appeared to go smoothly, the judge chose only to discuss some of the more easily resolvable differences. For example, the judge got basic agreement on the franchise acceptance fee. But there was no discussion on some of the thornier issues such as cable modem regulation and transitive regulation of Verizon's existing infrastructure and phone service.

And even in places where the judge seemingly had the parties nodding their heads in agreement, I have to express doubt as to whether they can really get it in writing. For example, the lawyers conceded that 5% of gross revenues applied only to video-related service, no matter what the franchise said. But I question whether the lawyers and the judge really understand the implications of convergence (i.e., the future melding of video and internet technology). As a trivial example, when Verizon delivers video to your computer over the internet, will this be subject to a 5% franchise fee because it's video or 0% because it's internet? It's important to realize that the distinction between the two is very loose despite the traditional notion that we have over them today.

So I think that the mediation process sounds great but may turn out to solve none of the serious areas of disagreement, forcing things back in the judge's hands in 60 days or whenever the mediator's time runs out. (A timeline was established behind closed doors and I don't know if this will be made public.) While this process could induce additional delays, the judge has the authority to settle things definitively - at least until one of the parties appeals the outcome. Appeals would be the worst possible outcome and surely neither Verizon nor MC wants to go that route.

In the short term, action yesterday potentially paves the way for a peaceful and (here I'd love to say "swift" but almost anything is swift relative to a year of non-) forward progress. As long as it can be done equitably, both MC and Verizon have strong motivation to settle and sign a franchise. Let's hope they do.

Rideo, Ergo Sum

In the spirit of painful humor, this flash video has been circulating around. It's sad the depths we've sunk to. On the other hand, I do agree that Go Montgomery! was a political gimmick in the first place. (And is now a failed political gimmick.) So in that sense, the video and the program deserve each other.

Acta Est Fabula Plaudite

The first person to post a comment with correct translations of all the Latin phrases I've used gets a coupon for a free pizza (coupon courtesy of Comcast). And after this, I promise - no more Latin!


Anonymous said...

Obviously the Latin translates into "I'm hungry," "I like pizza," "Don is awsome," and "Franchises are really boring."

Anonymous said...

Men readily believe what they want to believe.

I laugh, therefore I am.

The play is over, applaud.

Nice writ up. Thanks.


Anonymous said...

Festina Lente - An entree found on any MC meeting agenda!

Fere Libenter Homines Id Quod Volunt Credunt - We are the County Council and our foolish constituents will believe whatever we tell them to believe. It's all an illusion!

Rideo, Ergo Sum - Howdy Partner, thanks for giving us all your money. We will be sure to add it to the sum of all our other collections!

Acta Est Fabula Plaudite - Oh no folks, our constituents are onto us. It is an election year and this plush gig is up!

Anonymous said...

Thanks Don,

As always, a really nice write up!!


Anonymous said...

Your Latin(?)describes the scene perfectly. But, munching your popcorn, "...while the lawyers brought up various precedents (which they proceeded to misinterpret or otherwise abuse)" is priceless!
Another great blog for the world - about the world...

Anonymous said...

The extent of my recollection of Latin class ends with, "Brittania est insula."

Keep up the good work, Don.