Jonathan Handler is the lead trial attorney in the Boston office of Day Pitney LLP, with a Greenwich shingle and 300 attorneys practicing under its name in offices between Massachusetts and Florida. In October, he and a handful of Day Pitney attorneys sought – and in November received – an injunction against telecommunications company Sprint, based in Kansas, that has ramifications for the delivery of discount Internet service for schools and other nonprofits across the U.S.
On Nov. 6, a Massachusetts state court agreed with the Day Pitney position representing six nonprofit plaintiffs. Sprint, which had sought to discontinue its WiMAX Internet service to a group of nonprofits, must now for at least 90 days continue to provide broadband service.
Handler said the nature of the case was “specific performance” wherein the goal is not to win money — the usual end of contract disputes — but to continue providing the service. The injunction means, for now, that will be the case and Sprint will maintain Internet access for the estimated 300,000 people who use the nonprofits’ services.
“We are hopeful that either a resolution can be negotiated or the court will continue to see things our way and ultimately we’ll get the relief we’re seeking,” Handler said. “I would say we’re cautiously optimistic.”
Efforts to reach Sprint for comment were unsuccessful. In a web-based Kansas City Business Journal news report, a Sprint representative said the company had been trying to move its WiMAX users to its higher quality LTE network since last year. Sprint said it notified the six nonprofits about the changeover. In the report, Sprint said none of them agreed to cooperate and work with Sprint, choosing instead for a legal strategy.
The plaintiffs are Mobile Citizen and Mobile Beacon, which in turn represent the six nonprofits, which in turn interact with clients that include 429 schools, 61 libraries and 1,820 nonprofits in the U.S.
The nonprofits, which run from regional to national in scope, are the North American Catholic Educational Programming Foundation Inc. in Rhode Island; Chicago Instructional Technology Foundation Inc.; Denver Area Educational Telecommunications Consortium Inc.; Instructional Telecommunications Foundation Inc. in Colorado; Portland Regional Educational Telecommunications Corp.; and Twin Cities Schools Telecommunications Group Inc. in Minnesota.
One plaintiff laid out in an affidavit an example of the stakes. Kirk Anderson, director of educational technology at Denver Public Schools, said, “We have 5,500 teachers in the Denver Public Schools system where thankfully we have a robust and reliable wireless Internet network. Where we tend to struggle is when our teachers travel outside our network and require that same level of service to do their work. That is where Mobile Citizen comes in.
“One example of why we need equal and unlimited Internet access outside network is our student learning objectives (SLO) program. The program is one part of how we measure teaching success. To support this program, we have pulled teachers off-site, 100 at a time, to do professional learning and build SLOs. In those situations, we have been dependent on the 20 modems from Mobile Citizen to create a multiplier effect, so these 100 teachers can be connected and complete their professional development, all at the same time. The volume requires bandwidth. Our teachers have come to expect this degree of reliability in the classroom. There is no reason they shouldn’t expect the same beyond the classroom.”
Collectively, the plaintiffs assert, in part: “This is an action for specific performance and injunctive relief resulting from defendants’ failure to comply with their contractual obligations to supply broadband Internet service and user devices to plaintiffs.
“Plaintiffs are nonprofit entities that hold licenses from the Federal Communications Commission to operate certain Educational Broadband Service channels within certain geographic markets. Plaintiffs do not offer commercial services with their wireless spectrum, but, like other Educational Broadband Service licensees, grant access to a portion of their wireless communications spectrum capacity to commercial wireless broadband providers like Clearwire so that these commercial entities will construct stations that can use the spectrum to offer wireless broadband services commercially.” (Sprint bought Clearwire in 2013.)
Handler said the federal government dating to radio days has set aside a section of the spectrum for the public good. Those laws can be poor fits for the Internet age.
“This is really about the digital divide,” he said. “Society is becoming stratified. There is a notion out there that we’re all out there at high speed. But large portions of the population, for financial reasons, are not.”
Handler, who is 49, described the Internet as a “virtual utility” and said, “That seems strange to my generation. But younger generations recognize this. If you’re looking for a job today, it’s not in a newspaper; it’s online. To monitor your Social Security, it’s online. These are populations our clients are trying to serve and unless they can find this program, these people are at a real disadvantage.
“That’s what this case is all about.”
The list of cities covered by the order includes New Haven, plus more than a dozen municipalities including New York City, Miami, Los Angeles and Washington, D.C.
In his lawsuit affidavit, John Primeau, president and CEO of plaintiff North American Catholic Educational Programming Foundation, said, “When this shutdown of the WiMAX network is complete, many of the plaintiffs’ customers will have no Internet service. The alternative is for them to pay Sprint or another commercial provider the standard, customary rates for devices and service, which they cannot afford to do. So effectively, they are rendered without this vital Internet service.”