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Representative Engagements and Projects
Community Broadband. The only law firm in America named to Broadband Community Magazine's FTTH Top 100 for 2012, Baller Herbst has been involved in most of the leading community broadband projects during the last decade and is widely regarded as the most experienced and knowledgeble firm in America in this area. The Firm provides a broad range of legal, regulatory and legislative representation, as well as strategic planning assistance, to public entities that have entered, or are considering entry, into the communications marketplace. The Firm's clients have pursued a variety of entry strategies, ranging from leasing infrastructure to forging public/private partnerships to offering a full suite of communications services themselves. The firm also assists public entities in doing everything necessary to comply with start-up and ongoing federal and state regulatory requirements.
State Barriers to Public Entry Into Telecommunications. Jim Baller and Sean Stokes obtained important rulings striking down Missouri and Virginia barriers to public entry into telecommunications in Missouri Municipal League v. FCC, 299 F.3d 949 (8th Cir. 2002), rev'd, Nixon v. Missouri Municipal League, 541 U.S. 125 (2004), and City of Bristol, VA v. Earley, 145 F.Supp.2d 741 (W.D.Va. 2001) (vacated as moot following enactment of corrective state legislation). In addition, since the enactment of the Telecommunications Act of 1996, the Firm has been involved in most of the key federal and state legislative and judicial battles involving state barriers to public entry.
American Public Power Association. Since 1993, the Firm has represented the American Public Power Association (APPA), the national service representative for the Nation's approximately 2,000 public power utilities, on a broad range of cable and telecommunications matters before the Federal Communications Commission, Congress and federal and state courts. The Firm has prepared analyses of and comments on numerous proposed rules, orders and legislation on behalf of APPA and has regularly helped organize and made presentations in APPA's telecommunications conferences and workshops. Among other things, the Firm has written comprehensive guidebooks on entry into the communications field, pole attachments, and privacy for APPA's members.
Comprehensive Cable and Telecommunications Regulatory Planning and Implementation. Since the early 1970s, Adrian Herbst has been a national leader in assisting local governments with comprehensive cable and telecommunications planning. Particularly since passage of the Telecom-munications Act of 1996, Adrian Herbst, Jim Baller and Sean Stokes have represented local governments throughout the United States in drafting and negotiating cable franchise agreements, reviewing franchise renewals and transfers of ownership of franchises, and enforcing and administering such franchises. They have also helped numerous local governments to develop, integrate and administer right-of-way regulatory ordinances, standards guiding the use of public right-of-way, and tower/zoning ordinances. The Firm has also assisted numerous local governments in reviewing applications for franchises by broadband "overbuilders".
Anticompetitive Practices by Incumbent Communications Providers. The Firm has represented APPA and numerous public and private entities in combating anticompetitive practices by established communications service providers, including predatory pricing, targeted rate discrimination, denial of access to video programming, etc. In 2004, the National Association of Telecommunications Officers and Advisors submitted to the Senate Judiciary Committee an extensive report on such practices prepared by the Firm. http://www.baller.com/pdfs/bh_anticomp_report.pdf. In December 2006, Jim Baller testified further to the Senate Judiciary Committee on such matters. The Firm was also lead trial counsel in a recent case in which a jury awarded a small cable operator damages of $3.3 million, finding that a major cable operator's anticompetitive practices violated the state's deceptive and unfair trade practices laws.
Level Playing Field Issues. The Firm has been involved in numerous "level playing field" matters. The Firm won a major victory on this issue in the context of cable franchising, in Insight Communications v. City of Louisville, KY, http://www.baller.com/pdfs/ky-ct-app-louisville-opin.pdf. The Firm also represented UTOPIA in a level-playing-field case brought by an incumbent telecommunications company andt the Florida Municipal Electric Association in such a case before the Supreme Court of Florida, http://www.baller.com/pdfs/fmea_amicus.pdf. The Firm also frequently addresses level-playing-field issues in the context of state barriers to public entry into the communications industry.
Pole Attachments. Jim Baller and Sean Stokes have developed and negotiated state-of-the-art pole, duct, and conduit agreements on behalf of dozens of municipal utilities across the Unites States. They often speak, write, and conduct seminars on these subjects and have written a manual for members of the APPA. The Firm has also teamed with engineers, accountants and local counsel to develop model pole attachment agreements, instructions, automated rate calculators, and engineering diagrams and procedures for large groups of municipal electric utilities and cooperatives in Wisconsin, Texas, Virginia, Illinois and Iowa.
Bankruptcy. Jim Baller and Sean Stokes represented the National Association of Telecommunications Officers and Advisors and several individual municipalities and utilities in the bankruptcy of Adelphia Communications Corporation.
Dallas-Fort Worth Airport. Working with a prominent technical consulting group, the Firm helped the Dallas-Fort Worth Airport to plan its telecommunications future. Our work included evaluating legal implications of the options available to the Airport under current and potential federal and state laws and other factors.
Mall of America. Adrian Herbst served as general counsel for the Port Authority for the City of Bloomington, Minnesota. The Port Authority was created by the City of Bloomington as an economic development entity which under Minnesota law would have the authority to purchase, own, and sell land as well as to finance public improvements. As a result, he was the principle attorney on behalf of the City and its Port Authority to purchase the former stadium site in Bloomington and the principle architect of a development agreement that had to be negotiated with a single developer which resulted in the Mall of America, one of the largest real estate development projects in the country. The work involved negotiation work with developers and numerous processes with state government, planning agencies, and environmental authorities.
Wireless Technology Research, L.L.C. Jim Baller served as counsel to the WTR, which was established in 1995 to conduct a worldwide independent and scientifically rigorous research program to determine whether and to what extent wireless technologies may cause public health concerns. The Firm was involved in complex class action litigation until settling with the plaintiff class on highly favorable terms for the WTR.
Competitive Cable Coalition (CCC). On behalf of three Minnesota competitive cable overbuilders, Sean Stokes was a founding member of the CCC, a national coalition of competitive cable overbuilders that are seeking access to video programming on competitive terms to that afforded the large incumbent cable providers. Individually and through the CCC the Firm is attempting to obtain Congressional and FCC relief for its clients.
Pennsylvania League of Cities and Municipalities. Since the early 1990s, Adrian Herbst has served as outside consultant to the Pennsylvania League of Cities and Municipalities. A technical assistance program was created by the League to provide assistance to local government regarding the merging and changing field of telecommunications and the authority of local government to regulate cable television and telecommunications services. As consultant, he is regularly involved in the development of workshops, community newsletters, and other services that may be required by individual communities throughout Pennsylvania.
Other Presentations and Workshops. We have made presentations and conducted workshops on cable and telecommunications matters on behalf of state leagues, state regulatory agencies and regional, state and municipal utility associations, in numerous states, including Alabama, Arkansas, Florida, Illinois, Iowa, Kansas, Minnesota, Missouri, New Jersey, North Dakota, Oregon, Pennsylvania, South Dakota, Tennessee, Virginia and Washington State.
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