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County's fiber optics deal goes sour

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A deal between San Luis Obispo County and a major telecommunications company has fallen apart, leaving the county without an expected link between various county-wide centers.

In a lawsuit, the county accuses Colorado-based Level 3 Communications of reneging on an agreement signed in 2001, which allowed Level 3 to install fiber optic cable from one end of the county to the other for free, and in turn gave the county access to the cable.

But now that the cable has been installed, says Assistant County Council Jac Crawford, Level 3 is not filling their part of bargain.

Level 3's lawyers and public relations staff refused to comment on the case.

At the heart of the lawsuit are the laws that once ruled where telephone companies could install phone poles and lines. Because the phone lines were available to anyone, the public utility commissions called them "common" and phone companies could install them without paying a fee to any county or state government.

But that all changed once the Internet came along, said Crawford. Now there are companies that sell the capacity in their "lines" to other companies who sell services to the public.

Back in 1999, Level 3 received a permit from the federal government to operate a fiber optic cable system know as the Japan-US Cable Network. The cable, which comes ashore near Los Osos, travels to the edge of San Luis Obispo and then follows the approximate path of Highway 101 to the north and south.

According to the county's lawsuit, Level 3's permit classifies its local fiber optics as "non-common" and specifically states that the company can "discriminately offer capacity... to only selected users." In other words, Crawford said, they're not a common carrier, and so they have to pay to lay their lines on county soil.

In 2000, Level 3 approached the county to do just that. However, they were offering a deal: If the county let them install their fiber optic cables in the county without cost, the county would have an "indefeasible right" to use six stands of fiber optics.

It seemed like a great offer for both sides: Other cities and counties in the state charge companies as much as $23 a foot to lay cable. And the county was saving incalculable amount of money on installing fiber optics.

Not only that, Level 3 was offering them eight access points along the 69 miles of the company's cable: Paso Robles, Templeton, Atascadero, Santa Margarita, San Luis Obispo, Grover Beach, Oceano, and Nipomo.

The county accepted Level 3's offer, issued the permits, and in September 2001 both sides signed a contract called the "Dark Fiber Agreement" - which is what unused fiber optics is called.

Now, the fiber optic cable is installed, but the county has no access, said Crawford. And while Level 3 refused to comment, Crawford has his own idea why they might be withholding on their agreement: In 2003, after a similar situation in Riverside County, a telecommunications company was able to convince a state court of appeals judge that the were in fact a "common" carrier.

"This [case] is going to come down to if [Level 3] is a common carrier or not a common carrier. We'll see how that turns out," Crawford said.

So what would the county have done with its fiber optics?

Guy Savage, assistance chief information officer with the county's information technology department, said there are many options. Because of the advantages of fiber optics - mainly that it can carry massive amounts of information at extremely high speeds - the county could be able to link buildings and departments in an unparalleled way.

One example Savage gave was being able to stream the audio and video of county board meetings to other places in the county as the meetings occur. That can't happen now, Savage said, because it would disrupt other county business that happens over the network.

"Owning your own fiber is like owning anything else: You have better control over it. You're not sharing your pipe with anyone else. It's your pipe, it's your data."

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