A leading proponent of municipally owned broadband networks says the conditions established in the Broadband Investment and Consumer Choice Act regarding publicly owned nets are “unnecessary, unworkable and counterproductive.”

Attorney Jim Baller of The Baller Herbst Law Group represents municipalities seeking to build their own broadband networks including, of late, both the Lafayette (La.) Utility System and the UTOPIA project in Utah. His comments, distributed Thursday, are likely to become the rallying cry for the community broadband movement to push for changes in BICCA.

The telecom reform measure, introduced earlier this week by Sen. John Ensign (R-Nev.), doesn’t prohibit municipalities from building, owning and operating their own broadband networks. But it does impose a number of restrictions, beginning with a requirement that cities and towns allow private entities to bid on any network they wish to build, and share with those private entities any advantages a city-owned network would have, such as access to municipally backed bonds and tax benefits. The Ensign bill would also require cities that wind up building their own networks to allow other service providers access to that network infrastructure at a future date to install their own broadband facilities.

In a statement released Thursday, Baller said the Ensign bill’s provisions are based on fundamentally flawed assumptions.

It assumes “that local governments have significant, unfair advantages over the private sector that must be nullified, without consideration of the vast advantages of incumbency that established providers enjoy,” Baller said. In addition, he said, Ensign’s bill would transfer a municipality’s advantages without also transferring its public obligations.

Baller believes the bill incorrectly assumes that incumbent broadband service providers aren’t building municipal broadband networks because they don’t have access to public funding and other government advantages, when in fact it is short-term profit goals that prevent telephone and cable providers from wiring some cities and towns with broadband.

Even enacting the Ensign bill’s provisions would require changes in federal, state and local laws, Baller points out, since, among other things, the measure would give private enterprises the tax advantages of public entities. Finally, by requiring municipalities that do build their own networks to give other service providers access to those facilities, the measure essentially has a chilling effect on funding of municipal networks.

It’s unrealistic to think that “a community that won a bid could realistically obtain financing in the fact of the serious threats that the bill would pose to their ability to meet their bond obligations in the future,” Baller said.

Municipal network proponents have lined up a number of technology companies and groups, including Intel Corp. and the High-Tech Broadband Coalition, as well as consumer and public government associations, to back a previous measure, sponsored by Sen. John McCain (R-Ariz.) and Sen. Frank Lautenberg (D-N.J.) that would permit municipal networks. McCain, who co-sponsored Ensign’s bill, has said he will continue to back his previous measure and is expected to work with Ensign on possible revisions to the larger reform package.