They teach you in law school to make all possible arguments in favor of your client’s position, no matter how far-fetched, since you never know which one will stick. The lawyers for Hawaiian Telcom evidently have taken that advice to heart in making the case that it should be eligible for subsidies from the FCC’s high-cost support mechanism under the Universal Service Fund. In January, the firm asked the FCC for a special waiver from the normal eligibility for payments from the fund, which subsidizes phone service costly areas. Under current rules, a telephone company’s eligibility for payments depends upon its statewide cost average. Hawaiian Telcom is asking that its eligibility be determined on a more specific, wire center by wire center, basis.
It may sound like a technical distinction, but – because many parts of Hawaii have costs far above the statewide average – it is significant, and could mean some $24 million per year in subsidies for the firm, which until a few years ago was owned by Verizon.
It’s not unusual for Hawaii to ask for special dispensation in such matters – in 2006, for instance, the Senate telecom reform bill had a provision creating special telecom subsidy rules for states “comprised entirely of islands.”
In this case, however, the lawyers for Hawaiian Telcom outdid themselves, arguing that the subsidies aren’t just a matter of getting cheaper phone service for Hawaiians, but that they are necessary to national defense. Hawaii, they say, is of “strategic importance” to the U.S., making a well-funded telecommunications system essential.
Their petition to the FCC goes into considerable detail on Hawaii’s role in national defense: it’s the home of the U.S. Navy’s Pacific Command, they point out – responsible for monitoring “over 50 percent of the earth’s surface”, “60 percent of the earth’s population,” and “the world’s largest armed forces”, including those of China, Russia and North Korea.” And – apparently – the Pacific Command does all this by relying on basic telephone service in remote parts of Hawaii served by Hawaiian Telcom. I had no idea.
And apparently communications is already failing. In its compendium of the awesome responsibilities shouldered by Hawaiian Telcom and the United States military is “compliance with five of the seven worldwide U.S. mutual defense treaties, “ including the South East Asia Collective Defense treaty, better known as SEATO.
It seems, however, that word hasn’t reached Hawaiian Telcom’s lawyers that SEATO was dissolved in 1977, after the end of the Vietnam War. If only telephone subsidies had been adequate back then, that tragedy may have been avoided.
Hawaiian Telecom’s argument is a creative – if ludicrous — attempt to wrap a call for federal pork in the American flag. It probably the best example of logical jujitsu since the Post Office was used to prove the identity of Santa Claus in Miracle on 34th Street.
It’s unclear how the FCC will react. In the comment period – which ended last week — there was quite a bit of opposition from other telcos (many of which probably wish they had thought of the argument first.) But then again, Hawaii has many friends, especially in the U.S. Senate’s Commerce Committee, chaired by Sen. Daniel Inouye of Hawaii.
But win or lose, Hawaiian Telcom should be congratulated for this excellent contribution to the art of lobbying. It is certainly an argument that will live in infamy.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.