Broadband in the Berkshires

Massachusetts Technology Collaborative still fighting to gain access to its own network

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A six-month battle to protect its 1,200-mile broadband network is down to a game of inches for the Massachusetts Technology Collaborative.

With a short length of cable, the state agency could plug into the network's "point of presence" in Springfield — and gather information, for the first time in years, on how the system is being used.

It came close to that goal Sept. 26, after months of legal appeals filed in a U.S. District Court civil action.

A representative of Holyoke Gas & Electric stood by that day, cable at the ready, only to find a promised escort turn into a lockout.

As a legal feud intensifies with Axia NetMedia Corp., the network's first and only operator, MassTech says it needs network access to plan for a "safe and secure" transition to a new vendor.

Instead, rebuffed by Axia and its affiliated companies, the agency still hasn't been able to use passwords it obtained June 9, after another drawn-out legal fight, to gain access to its own network.

At stake is the continued operation of MassBroadband 123, the "middle mile" network paid for with $90 million in state and federal funds in the wake of the 2008 recession. The system provides internet connections in dozens of formerly unserved towns and is considered vital to public safety communications. It connects hundreds of public institutions in Western and Central Massachusetts to the internet.

Litigation has dogged the network, as MassTech fought suits from the network's builder and operator, which, in a March 22 bankruptcy filing, claimed that the state misrepresented how many customers the system would attract and was late to finish it.

The middle mile has been losing millions, Axia claims, triggering a legal dispute that began with the network's debut in 2014.

Attorneys continue to battle in Judge Timothy S. Hillman's Worcester courtroom, having by now filed hundreds of documents in a case generating millions of dollars in legal fees.

Brian Noyes, a spokesman for MassTech, declined to comment on the case, citing the legal dispute.

Attempts to reach attorneys Brian P. Voke and Adam A. Larson of Campbell, Campbell, Edwards & Conroy in Boston, who represent Axia NetMedia, were not successful.

Pitched battle

But court filings depict a pitched battle by MassTech to gain access to the network — and its vendor's fight to keep it out.

MassTech staff may well have thought they'd won that access after Hillman ruled May 18 that Axia's side must provide passwords and other technical information enabling MassTech to connect to the network.

The system is now run by an entity called KCST USA Inc., which filed for bankruptcy protection in March. But Axia, based in Canada, has provided interim financing and remains responsible for safeguarding the network's operation. Axia is the sole beneficiary of the trust that owns KCST.

David Charbonneau, technical director for MassTech, provided a timeline of tense relations between the parties in a September affidavit.

After securing the passwords, MassTech moved to establish the physical and electronic connection it needed to use them, through what it called its Information Access Connection.

It had asked for that in May, but it wasn't until July that work started. MassTech paid Axia for a new electronic connection from the outside of the Springfield internet hub to a new device inside, a thing called the "MBI Sonicwall."

The state began paying Axia $1,315 a month for that connection, which was completed in August.

But those last inches remained.

MassTech needed to send a technician in to run an ethernet cable from the new connection into the network, as well as to handle a few other tasks estimated to take 10 to 15 minutes, Charbonneau said in the affidavit.

Pressing what it saw as a dire need for access, the agency's legal team, led by Robert J. Kaler of Holland & Knight LLP, was able to secure a court order Sept. 22.

On that Friday, Judge Hillman gave Axia until midnight the following Tuesday to allow the cable to be installed.

All seemed to go well for a time, Charbonneau noted in a later affidavit. On that Tuesday, he said he heard from Jason Wing, an Axia representative, saying that Tim Haas, a Holyoke Gas & Electric technician, would be able to get inside the hub.

That news came in a 2:52 p.m. email, Charbonneau said. Less than an hour later, Wing relayed contact information for Haas.

But at 4:37 p.m., Axia's legal team filed a motion for reconsideration of the judge's order, claiming that MassTech had presented "false and misleading statements" about the case.

Seven minutes later, Charbonneau heard from Haas, who told him he was barred entry by Wing.

Word later came that MassTech needed to speak with Steven Darr, managing director of Huron Consulting, a company retained by the bankrupt entity.

It was Darr, court papers say, who directed that MassTech not be allowed to connect to the network.

That's where the impasse stood as of Wednesday afternoon, after a court hearing Oct. 3. A ruling by Hillman is expected at any time.

'Affront to court'

Axia's legal team argued that giving MassTech access to the system put its client at risk because the network owner could make changes or disrupt operations. MassTech, the Axia lawyers claimed, did not have an "unfettered" right to access.

Attorney Andrew G. Lizotte of Murphy & King PC, representing KCST, said in an Oct. 5 filing that MassTech's contract with Axia did not give it a right "to install its own firewall and make a direct connection into KCST's network."

Further, Axia's side argued that it was not in contempt of a court order because the judge didn't compel KCST or its consultant to provide access.

But Kaler, for MassTech, said any legal argument that the parties were trying to protect the bankruptcy estate didn't apply, because the middle mile network is owned by the state and is not part of the bankruptcy case.

He said MassTech's "network operator agreement" allowed it access. And he derided Axia's actions as a "shell game" and labeled them "an affront to the court."

Along with allowing the ethernet cable to be connected, Hillman's order had said Axia must provide an electronic circuit, IP address and what's known as a "default gateway"— all parts of the Information Access Connection that would allow MassTech to know what's going on inside the network.

Along with enabling it to rescue the network, should Axia collapse financially, the access was needed to allow MassTech to recruit a new operator.

MassTech issued a request for proposals for that role after the bankruptcy filing. It met with prospective bidders at a conference last spring and had been negotiating with a half-dozen of them to take over the middle mile contract.

Court papers say Holyoke Gas & Electric emerged as a "prospective replacement" for Axia. No contract has been signed.

At one point in the skirmishing, Axia's side represented that the company, which is headquartered in Calgary, Canada, had no presence in Massachusetts. But Kaler provided the court with documents that show an entity called Axia Connect is registered as a Massachusetts corporation.

Along with proceedings in U.S. District Court and U.S. Bankruptcy Court, in the same downtown Worcester building, an aspect of the case will be heard in the First Circuit of the U.S. Court of Appeals.

In June, Voke, the lead Axia attorney, asked the appeals court to review Hillman's handling of its civil action against MassTech.

The appeal focuses on Hillman's May decision compelling Axia and its entities to preserve functioning of the network.

Citing the network's importance to public safety, Hillman granted a preliminary injunction May 18 that ordered Axia to honor the performance guarantee it signed in 2011.

Reach staff writer Larry Parnass at 413-496-6214 or @larryparnass.


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