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E-FILED 2020 DEC 10 8:59 AM POLK - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

MCC IOWA LLC d/b/a MEDIACOM, Case No.

Plaintiff,
PETITION FOR DECLARATORY
v. JUDGMENT & INJUNCTION

CITY OF WEST DES MOINES & WEST


DES MOINES CITY COUNCIL,

Defendants.

Plaintiff MCC Iowa LLC d/b/a Mediacom (“Mediacom”), by and through the undersigned

counsel, states the following in support of its Petition for Declaratory Judgment & Injunction:

INTRODUCTION

1. The City of West Des Moines (“City” or “West Des Moines”) is improperly using

financing tools intended to fight urban blight and poverty to subsidize building a $50 million city-

wide conduit for the exclusive use and exploitation of one of the richest companies in the world.

Not only is that bad policy, it violates Iowa law.

2. Over a period of only two weeks this past summer, the City of West Des Moines

(“City” or “West Des Moines”) rushed through plans, concocted without public knowledge or

involvement, to spend up to $50 million to build a city-wide underground conduit network (the

“Conduit Network”), which the City plans to finance in whole or in part by issuing taxpayer-

backed bonds.

3. The Conduit Network is basically a series of pipes installed in the City’s right of

way into which fiber could be installed by private companies to provide high-speed internet

services to residents who connect to that fiber.

4. The City justified this massive expenditure by claiming that the Conduit Network
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would “expand” internet access and “promote competition” by enabling multiple internet service

providers (“ISPs”) to offer high-speed internet access service by installing their fiber and cable in

the Conduit Network.

5. These statements by the City were knowingly and intentionally false and

misleading.

6. At the same time the City approved the Conduit Network and the bonds that would

be used to finance it, the City also approved a secretly negotiated agreement with Google Fiber,

Inc. (“Google Fiber”), an ISP founded by Google LLC as its corporate subsidiary in 2010. This

agreement is anticonsumer and anticompetitive.

7. The agreement grants Google Fiber exclusive rights that are intended to and will

give Google Fiber the dominant position in the West Des Moines broadband market. For example,

the agreement:

a. Prohibits any other ISPs from using virtually the entire Conduit Network for
years to come. The City claimed this exclusivity period was necessary so that
Google Fiber could test the integrity of the Conduit Network’s construction.
This explanation is pretextual and implausible. The City also failed to publicly
bid this phase of its construction project, as required by Iowa law, and instead
selected Google Fiber in secret;

b. Grants Google Fiber effective control over the design of the Conduit Network
and when and where it will be built. Google Fiber, with the City’s consent and
cooperation, can exercise these rights to design the Conduit Network in a
manner that will make it difficult, if not impossible, for other ISPs to use it if
and when the City allows them to access the Conduit Network. This includes,
for example, building the Conduit Network on the opposite side of property
lines from where the incumbent ISPs’ existing networks are located and failing
to include sufficient access points to allow other ISPs to move portions of their
existing networks into the Conduit Network;

c. Guarantees that Google Fiber will pay significantly lower costs for access to
the Conduit Network than other ISPs will if and when they are allowed to use
it and also significantly lower than what incumbent ISPs will have to pay for
alternative means of accessing City rights of way. This includes, for example,
giving Google Fiber a “lowest price” guarantee for access, as well as a cable

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TV franchise fee credit and a citywide licensee credit that could additionally
reduce Google Fiber’s annual access costs by hundreds of thousands of dollars
or more per year;

d. Provides a streamlined city permitting process, available only to Google Fiber,


that will ensure that Google Fiber can quickly expand or upgrade its network
whenever Google Fiber wants, thus securing timing and cost advantages vis-à-
vis its competitors;

e. Requires city-provided maintenance (at the City’s expense) of the Conduit


Network;

f. Provides for revenue sharing in the form of license payments by Google Fiber
to the City. The total payment by Google Fiber to the City is determined by the
number of residents who sign up for the Conduit Network. Because Google
Fiber is the only provider allowed to use the Conduit Network, the City’s
revenue sharing arrangement incentivizes it to favor and promote Google Fiber
and impede other ISPs’ ability to compete.

8. The City has engaged in additional unfair conduct that has promoted Google Fiber

to residents and impeded other ISPs’ ability to compete fairly with Google Fiber.

9. For example, the City has undertaken a massive marketing campaign encouraging

residents to connect to the Conduit Network so that they can receive “faster” and “more reliable”

internet (i.e., Google Fiber’s internet). The City lacks a reasonable basis for making these claims

and, apparently, did not bother to conduct rigorous research and analysis to figure out if those

claims were correct.

10. In addition to denying existing ISPs fair access to the Conduit Network, the City is

impeding their ability to upgrade their existing networks to compete with the City-subsidized

Google Fiber network. Specifically, the City is applying its permitting ordinances in a manner that

materially inhibits incumbent ISPs from upgrading their existing aerial plant networks or

expanding those networks to new parts of the City. The City’s permitting practices, when coupled

with the City’s decision to deny the existing ISPs access to the Conduit Network for the next

several years, give other ISPs two choices: (1) delay upgrading and expanding their networks to

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the detriment of consumers; or (2) bury and maintain their own networks in underground conduits

at their own (significant) expense. Either alternative puts incumbent ISPs at a significant

competitive disadvantage compared to Google Fiber, which Mediacom believes to have been the

City’s intent all along in formulating its plans for the Conduit Network and structuring its

relationship with Google Fiber.

11. The City’s negotiations with Google Fiber and the City Council’s hasty approval

of the secretly negotiated Google Agreement are improper in multiple ways.

12. At the time the City Council approved the Google agreement, Google Fiber’s

primary lobbyist in the state of Iowa was a member of the West Des Moines City Council.

Although the City Council member recused himself from the relevant Council votes, the conflict

extends beyond the simple vote. The City’s negotiations with Google Fiber had been ongoing for

approximately six months prior to the vote, and the City Council did not, based on information

and belief, adopt measures to ensure that the member in question was not involved in or precluded

from influencing those negotiations.

13. The City has covered up its naked favoritism towards Google Fiber in two key

ways:

14. First, the City has falsely claimed that any ISP can use the Conduit Network and

has intentionally failed to disclose that the City is actively denying ISPs other than Google Fiber

access to the Conduit Network for years to come.

15. Second, the City kept its closed-door negotiations with, and preferential treatment

of, Google Fiber out of the public eye and out of the voters’ hands by improperly approving and

financing the Conduit Network as an “urban renewal project” under Iowa’s Urban Renewal Law.

Iowa Code § 403.1 et seq (the “Urban Renewal Law”).

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16. Under Iowa law, cities that want to undertake large capital investments (such as a

new school or city hall) are required to provide citizens with full, accurate details about the projects

and an opportunity to vote on whether to approve the project via a referendum or special election.

17. This process ensures residents receive honest, accurate information regarding the

need for the project, how it will impact the municipality’s finances and their taxes, and enables

residents to have the final say on whether the benefits associated with the project are worth the

cost.

18. The City, however, bypassed this critical process by unlawfully declaring the entire

City of West Des Moines an “urban renewal area” under the Iowa Urban Renewal Law and

classifying the Conduit Network as an “urban renewal project” (the “Urban Renewal Plan”).

19. The City used the Urban Renewal Law to rush through the approval of the Urban

Renewal Plan, the Google agreement, and to authorize the issuance of $42.8 million in taxpayer-

backed bonds with minimal oversight and input from voters.

20. The City’s conduct is unlawful, and the Urban Renewal Plan, along with any bond

approvals, bond issuances, and the City’s agreement with Google Fiber are invalid.

21. Under Iowa law, the City can undertake urban renewal projects only in areas that

are: (1) “blighted” or a “slum;” (2) dedicated to “commercial and industrial enterprises;” or (3)

deemed an area where safe, sanitary and affordable housing needs to be constructed for specific

reasons.

22. West Des Moines is a thriving, wealthy community, and vast swaths of the City fall

well outside any of these categories.

23. The entire City cannot lawfully be deemed an urban renewal area.

24. Iowa law precludes the City from misusing the Urban Renewal Law to circumvent

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the public-financing and disclosure requirements that the Iowa legislature put in place to protect

the public.

25. Although the City’s negotiations with Google Fiber are shrouded in secrecy, it is

clear that the City violated Iowa law in at least five ways.

a. The City’s Urban Renewal Plan, the bonds approved and issued in support of it,
and the Google agreement violate the Urban Renewal Law and are invalid.

b. The City’s agreement and course of conduct with Google Fiber effectively creates
a de facto city utility, in violation of Iowa Code chapters 23A and 388.

c. The City violated Iowa Code chapter 26 by secretly selecting Google Fiber to
perform key phases of the construction of the Conduit Network, including
designing the Conduit Network’s specifications and testing its structural integrity,
without going through an appropriate public-bidding process.

d. The City violated Iowa Code chapter 23A by unlawfully competing with the private
sector, including by marketing Google Fiber’s goods and services.

e. The City is denying Mediacom and other cable and/or video franchisees with open,
comparable, non-discriminatory and competitively neutral access to the City’s right
of way, in violation of Iowa Code § 477A.9.

26. At this time, it is not Mediacom’s intention to seek damages for the City’s violations

of law that would ultimately be passed on to the people of West Des Moines, whom Mediacom

has faithfully served for many years.

27. Instead, Mediacom respectfully requests that the Court enjoin the City’s unlawful,

anticompetitive conduct to vindicate the voters of West Des Moines’ right to decide for themselves

whether and how the City should be allowed to proceed with building the Conduit Network and to

ensure they recoup the benefits that come when ISPs are allowed to compete on fair and equal

footing.

PARTIES, JURISDICTION, & VENUE

28. Plaintiff Mediacom is a Delaware limited liability company and is a wholly owned

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subsidiary of Mediacom Communications Corporation, which is incorporated in Delaware and

headquartered in New York.

29. Mediacom holds offices in the city of West Des Moines, transacts business in West

Des Moines, and is a property owner and taxpayer in the City.

30. Mediacom and its affiliates employ approximately 400 employees who work in the

City.

31. Mediacom has a substantial interest in the Defendants’ proposed urban renewal

plan and the legality of Defendants’ conferral of exclusive capital benefits on Google Fiber at the

expense of the residents and businesses of West Des Moines.

32. Mediacom’s rights, status, or other legal relations are individually affected by the

City’s conduct and violations of law as well.

33. Defendant City of West Des Moines is and has at all relevant times been a

municipality organized under the laws of the State of Iowa.

34. Defendant West Des Moines City Council (the “Council”) is and has at all relevant

times been the governing board of the City.

35. This Court is the proper venue for the present Petition pursuant to Iowa Code

§ 616.16.

BACKGROUND

A. Prior to Executing the Google Agreement, the City Treated ISPs in a Competitively
Neutral Fashion.

36. Mediacom has been providing broadband internet service in West Des Moines for

over twenty years.

37. During that time, Mediacom has invested tens of millions of dollars in developing,

maintaining, and upgrading its internet infrastructure in the City.

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38. West Des Moines is one of the most competitive broadband internet markets in the

country.

39. There are currently nine ISPs that provide high speed wireline internet services in

the West Des Moines market.

40. Mediacom provides high speed internet service throughout the entire City.

41. Mediacom receives no credits or financial incentives from the City to provide city-

wide internet access.

42. Upon information and belief, no other ISP that provides access to most (or all) of

the City receives any such credits or financial incentives either.

43. Mediacom also holds a franchise with the City of West Des Moines to provide cable

TV services. Since 2003, Mediacom has paid approximately $275,000 per year in franchise fees

to the City.

44. Mediacom receives no credits for its franchise fee payments.

45. Upon information and belief, no other current cable TV franchisee with the City

receives credits for their franchise fees either.

46. Mediacom also provides digital telephone services to residents of West Des

Moines.

47. Prior to the City’s execution of its agreement with Google Fiber, ISPs within the

City were subject to the same regulations and permitting rules and were provided access to the

City’s rights of way on competitively neutral terms.

48. This included aerial access to the rights of way, as well as access to install fiber in

the City’s limited, piecemeal existing underground conduit (the “Existing Conduit”).

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B. The City Develops Plans to Provide Broadband Internet as a Utility.

49. On September 20, 2010, the City adopted its most recent and currently operative

Comprehensive Plan.

50. According to the City, the Comprehensive Plan is a general plan for the physical

development of the City as a whole.

51. On December 2, 2015, the City published a twenty-year vision plan developed in

conjunction with public and private consultants titled “WDM 2036.”

52. The WDM 2036 plan stated that “[h]igh speed internet is being seen as an essential

public utility, like water and electricity.”

53. Under that framing of internet access as a public utility, the plan recommended the

City explore building its own public-domain fiber network and public-private partnerships as

possible avenues of establishing a city utility to provide broadband internet.

54. The plan also acknowledged that there may be legal considerations and limitations

in developing the City’s internet connectivity plan.

55. This included addressing “legal issue[s]” implicated by “competition with the

private sector.”

C. Google Redirects Its Iowa Lobbying Work to a City Council Member.

56. Around this same time, Google LLC began to expand its efforts to increase its

political influence in Iowa. Upon information and belief, Google Fiber was an ISP founded by

Google LLC as its corporate subsidiary in 2010, and the two companies presently remain corporate

affiliates as subsidiaries of Alphabet Inc.

57. Between 2016 and 2017, Google LLC nearly doubled its spending on lobbying in

Iowa and retained a new lobbyist, Matthew McKinney, who then sat and still sits on the Board of

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Directors of the West Des Moines Chamber of Commerce.

58. In November 2019, McKinney was elected to the West Des Moines City Council.

59. In 2019 and 2020, Google significantly increased the amount of lobbying work it

sent to McKinney and McKinney’s law firm.

D. The City Secretly Negotiates the Google Agreement.

60. Upon information and belief, starting in or around January 2020, the City began

engaging in closed-door negotiations with Google Fiber with respect to the Conduit Network.

61. Upon information and belief, the City and Google Fiber agreed to keep their

negotiations confidential until they reached final agreement on material terms.

62. Upon information and belief, the City’s negotiations with Google Fiber lasted

approximately six months and culminated in an agreement titled the Conduit Network License

Agreement (the “Google Agreement”).

63. The Google Agreement grants Google Fiber extensive rights and benefits that, upon

information and belief, the City has not offered or provided to any other ISP:

a. Design and Sequencing. The Google Agreement calls for the Conduit
Network to be built in seven sections, which are expected to be completed
in phases between July 2021 and September 2022. Google Fiber and the
City privately agreed on the general specifications that the sections of the
Conduit Network must meet. These specifications included requiring that
the Conduit Network be built along the front easements of properties, even
though existing West Des Moines ISPs’ networks are built along the rear
easements of properties. In addition, Google Fiber received significant
rights to decide when and where the sections of the Conduit Network would
be built. Google Fiber also received rights to review design plans and
identify deficiencies, which the City is obligated to correct in good faith.

b. Exclusive Use of the Conduit Network. The Google Agreement grants


Google Fiber the exclusive right to use each section of the Conduit Network
for eighteen months after that section is completed (the “Exclusivity
Period”). Google Fiber will receive a standalone Exclusivity Period for each
of the seven sections of the Conduit Network. The only exception to Google
Fiber’s exclusivity rights is that the City reserved up to 10% of the total

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linear footage in sections that will be located in “congested” areas of the


City’s right of way for potential use by other ISPs. Put simply, this means
Google Fiber will have a total monopoly over at least 90% of the total
available space in the Conduit Network (and likely significantly more) for
years to come.

c. Permitting Rights. The City committed to providing Google Fiber with a


“streamlined permitting process” for the “efficient and rapid deployment”
of Google Fiber’s network within the Conduit Network.

d. Revenue Sharing. The City and Google Fiber agreed to a “license


payment” arrangement that amounts to revenue sharing. Under this
arrangement, Google Fiber will pay the City a monthly license fee ranging
from $0.50 to $2.25 for every residence or business that connects to the
Conduit Network. The amount of Google Fiber’s license depends on how
many residents and businesses connect to the Conduit Network. The City is
thus incentivized to encourage residents to sign up to connect to the Conduit
Network. And, for at least the duration of the Exclusivity Period, Google
Fiber will be residents’ only option to access internet through the Conduit
Network.

e. Guaranteed Low Pricing and Additional Credits. The Google


Agreement guarantees that, if another ISP is eventually allowed to use the
Conduit Network, that ISP’s access fee cannot be lower than Google Fiber’s
license payment. In addition, the Google Agreement provides that Google
Fiber will receive a full credit for any cable TV franchise fees it pays against
its monthly license payments. The Google Agreement allows Google Fiber
to receive a citywide licensee credit if it uses at least 90% of the Conduit
Network and certain other conditions are met.

f. Maintenance. The Agreement imposes significant maintenance obligations


on the City with respect to the Conduit Network (at the City’s expense) and
allows Google Fiber to recover additional credits if the City fails to meet
certain maintenance benchmarks.

E. The City Simultaneously Negotiates an Agreement Granting Mediacom Limited


Access to the City’s Existing Conduit and Hides Its Plans to Build the Conduit
Network.

64. At the same time the City was secretly negotiating the Google Agreement, it was

also negotiating an agreement allowing Mediacom limited rights to install its fiber in small

portions of the City’s Existing Conduit.

65. During its negotiations with Mediacom, the City kept its negotiations with Google

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Fiber secret and never told Mediacom of the City’s plans to build the city-wide Conduit Network.

66. On or around June 4, 2020, Mediacom and the City executed the Master Conduit

License and Sharing Agreement (the “Mediacom Agreement”).

67. Under the Mediacom Agreement, Mediacom’s fees to use the Existing Conduit are

significantly greater than what Google Fiber will pay the City for its exclusive use of an equivalent

amount of space in the custom-built Conduit Network.

68. Mediacom also received no rights with respect to the design of the Existing Conduit

or any low-price guarantees or credits.

69. Mediacom’s rights under the Mediacom Agreement are materially inferior to

Google Fiber’s rights under the Google Agreement with respect to permitting, maintenance, and

other terms and conditions as well.

F. The City Rushes Through Approval of Its Urban Renewal Plan to Build the Conduit
Network, the Bonds to Finance the Conduit Network, and the Google Agreement in a
Matter of Weeks.

70. In late June 2020, the City finally publicly disclosed its plans to build the new

Conduit Network throughout West Des Moines.

71. Over the next two weeks, the City rushed through the process of obtaining

approvals by the City Council to: (1) build the Conduit Network, (2) issue up to $42.8 million in

bonds to cover construction and other costs; and (3) execute the Google Agreement.

72. On June 19, 2020, the City published a notice in the Des Moines Register that the

City Council intended to take up a resolution to issue up to $42.8 million in bonds to finance urban

renewal projects under Iowa Code chapter 403, including the construction of a city-wide fiber

conduit network.

73. At the time the June 19, 2020 notice was published, the City had not yet provided

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public notice of the Conduit Network project, nor had the project been submitted to or approved

by the City’s Plan and Zoning Commission or the City Council.

74. On June 22, 2020, the City’s Plan and Zoning Commission convened and voted on

a proposed Economic Development Digital Enterprise Urban Renewal Plan for the Economic

Development Digital Enterprise Urban Renewal Area (the “Urban Renewal Plan” or “URP”).

75. Upon information and belief, the City conducted no economic feasibility, technical

or other studies to determine whether the URP is necessary or in the best interest of the City.

76. The URP purported to designate a new Urban Renewal Area pursuant to Iowa Code

chapter 403.

77. The URP’s description and annotated map of the Urban Renewal Area

encompassed the entire City of West Des Moines (excepting agricultural parcels).

78. The URP’s stated purpose was to construct a city-wide Conduit Network “to be

leased or licensed by [multiple] third-party providers.”

79. The URP stated that the goal of the plan was to “increase the availability of

opportunities for commercial, industrial and residential development.”

80. The URP included no findings or information regarding any specific parts of the

City that were being designated as appropriate for commercial and industrial enterprises.

81. Upon information and belief, the governing body of West Des Moines never made

any such findings or conducted any analysis or studies to support such findings.

82. The URP included no findings or information regarding any specific parts of the

City where there was an inadequate supply of affordable, decent, sanitary housing or that

constructing such housing was important to meeting any specific objective of the City.

83. Upon information and belief, the governing body of West Des Moines never made

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any such findings or conducted any analysis or studies to support such findings.

84. The URP included no findings or information regarding any specific areas of the

City that were being designated as appropriate for construction of housing and residential

development for low- and moderate-income families.

85. Upon information and belief, the governing body of West Des Moines never made

any such findings or conducted any analysis or studies to support such findings.

86. Upon information and belief, vast swaths of the City are zoned as residential areas

and have an ample supply of safe, sanitary, and affordable housing.

87. Thus, vast swaths of the City cannot be properly deemed part of an Urban Renewal

Area.

88. The URP’s estimated cost to the City was $50 million.

89. The Plan and Zoning Commission voted to approve the URP.

90. On June 26, 2020, the City published a notice in the Des Moines Register that the

City Council was holding a meeting on July 6, 2020, to vote on a resolution to approve the URP.

91. On July 1, 2020, just five days before the City Council meeting, the City published

a notice in the Des Moines Register that the City Council would take up a resolution to enter into

a “Conduit Network License Agreement” at the July 6, 2020 meeting. The notice did not identify

the nature of the agreement or with whom the City was executing it.

92. On or around the date of the July 6, 2020 hearing, the City published an agenda

item stating the City Council would take up a resolution to approve a “Development Agreement”

with Google Fiber related to the Conduit Network.

93. Upon information and belief, this agenda item was the first disclosure from the City

to the public of the proposed contract between the City and Google Fiber.

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94. The only details the agenda item provided about the Google Agreement were that

“Google Fiber will provide annual conduit lease payments up to $20 million” and that other ISPs

would be able to “lease space in the City’s conduit network.”

95. The City has since acknowledged that both statements in the agenda item were

false.

96. Upon information and belief, the City miscalculated or intentionally misrepresented

the revenue the City would derive from the Google Agreement and misrepresented this information

to the City Council and to the public.

97. On July 6, 2020, the City Council convened to take up and vote on three items

relating to the URP.

98. First, the Council voted to approve the URP.

99. Second, the Council voted to approve the Google Agreement.

100. Third, the Council voted to approve future issuance of $42.8 million of bonds to

fund the construction of the Conduit Network and the Agreement (the “Bonds”).

101. During the hearing, a member of the public objected to the Google Agreement on

the grounds that the City did not issue a request for proposals (“RFP”) for the project and asked

the City Council to table it so further discussions could be had as to whether the Google Agreement

was appropriate and lawful.

102. The Council then received feedback from the Deputy City Manager, Jamie

Letzring, who represented that issuing an RFP would have been “outside the guidelines of what is

currently permitted by Iowa law.”

103. Ms. Letzring’s feedback misstated the law. The City was required to publicly bid

for some or all of the services required of Google Fiber in the Google Agreement.

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104. The Council also heard from the City’s consultant, Dave Lyons, on the request for

public bidding.

105. Upon information and belief, at all relevant times Mr. Lyons served as a consultant

for the City and/or Google Fiber with regard to the negotiation and execution of the Google

Agreement and with respect to the design, financing, and construction of the Conduit Network as

well as the marketing of the Conduit Network and Google Fiber’s products and services that would

be available to residents through the Conduit Network.

106. Mr. Lyons advised the Council that it should not table the Google Agreement

because the contract was the product of six months of behind-the-scenes negotiations with Google

Fiber and that further delay was not warranted and that allowing other providers to participate in

negotiations and/or respond to RFPs would complicate and delay the project.

107. Mr. Lyons also assured the Council and the audience that “the proposed agreement

being considered tonight would not preclude the City from engaging in further public-private

collaborations” on the Conduit Network.

108. This statement was false.

109. In addition, Mr. Lyons represented “the City is not interested in setting up a system

that would compete with the private sector, as that would not comply with the Iowa code.”

110. Upon information and belief, Ms. Letzring’s and Mr. Lyons’ statements materially

misled the Council regarding the legality of the URP and the Google Agreement, as well as the

City’s intention to bar other ISPs from using the Conduit Network for years to come.

111. Another member of the public asked for clarification regarding whether other ISPs

would be able to freely use the Conduit Network.

112. Mayor Gaer stated that they would.

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113. This statement was false.

114. Over the objections raised by the public, the Council voted to approve the Google

Agreement.

115. Prior to the vote approving the Bonds, at least one member of the public objected

based on concerns that “the City is taking on a great deal of risk by funding this project with $42.8

million in bonds.”

116. Over the objections and concerns of individuals raised during the public comment

period, the Council voted to approve future issuance of the Bonds.

117. Upon information and belief, the City’s and its consultant’s misrepresentations

regarding the revenues that would be derived from the Google Agreement, whether public bidding

was required, that other ISPs would be permitted to access the Conduit Network and other

misrepresentations were material to the Council’s decision to approve the URP, the Google

Agreement, and the Bonds.

118. The City issued $13,565,000 of those Bonds on September 3, 2020. Those Bonds

are invalid and were issued unlawfully. The City’s expenditures of funds derived from these Bonds

are also unlawful and invalid as well.

119. On information and belief, the remainder of the Bond allowance remains unissued.

Any future Bond issuances would be invalid and unlawful, as would be the City’s expenditures of

any funds derived from such future Bond issuances.

G. The City Refuses to Grant Other ISPs Any Rights to the Conduit Network.

120. Following the July 6, 2020 Council meeting, Mediacom met with the City multiple

times to discuss its concerns with the URP and the City’s favorable treatment of Google Fiber.

121. Mediacom expressed its concern and frustration that the City did not disclose its

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plans to build the city-wide Conduit Network while Mediacom and City were negotiating the

Mediacom Agreement.

122. The City responded that such disclosure was unnecessary because the City never

intended to grant Mediacom any rights to the city-wide Conduit Network during Google Fiber’s

Exclusivity Period.

123. Mediacom expressed its concern that giving Google Fiber a monopoly over the

Conduit Network for the next several years was anticompetitive, violated federal, state and local

law, and, fundamentally, made no sense.

124. The City offered only one explanation—that the Exclusivity Period was intended

to “test” the structural integrity of the Conduit Network to determine whether it would “survive a

long, cold Iowa winter.”

125. This explanation is pretextual and false.

126. Iowa winters do not last eighteen months.

127. In addition, this is not the first time an underground conduit has been built. It is

not hard to do, and the City does not need 18 months (or anything remotely approaching that length

of time) to test the structural integrity of the Conduit Network.

128. Nor does the City’s explanation shed light on why Google Fiber will have

successive eighteen-month Exclusivity Periods for each section of the Conduit Network as each

section is completed.

129. Further, because the “testing” of the Conduit Network is inevitably part of the

construction process, the City was required to publicly bid this phase of the construction process.

130. The City failed to solicit public bids for this construction process, in violation of

Iowa law.

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131. Mediacom also shared its concerns that Google Fiber was designing or could design

the Conduit Network in a manner that would impede, if not outright prevent, other ISPs from being

able to feasibly use it if and when the City allows them access to it.

132. As an example, Mediacom noted that the specifications for the Conduit Network

required the network to be built along the front easement of properties.

133. Over the past decades, Mediacom and other incumbent ISPs in many instances built

their networks along the rear easements of properties because that is where the power lines are

located.

134. Mediacom expressed concern that the specifications for the Conduit Network failed

to include sufficient access points for the other ISPs to access a Conduit Network that would be

built on the opposite side of the property line.

135. The City agreed that this could become an issue and that the City should seek input

from other ISPs on the design of the Conduit Network.

136. But to date the City has refused to commit to giving Mediacom or, on information

and belief, any other ISP, any right to input on the design of the Conduit Network.

137. Mediacom shared concerns that the City’s revenue sharing agreement with Google

Fiber would incentivize the City to promote Google Fiber’s interests and impede other providers’

ability to compete on equal footing with Google Fiber.

138. The City has refused to change its revenue-sharing rights.

139. Mediacom shared concerns that the City’s restrictive overlashing ordinances with

respect to aerial plant would impede Mediacom from upgrading or expanding its above ground

network.

140. In response, the City indicated that it might temporarily not follow its ordinances;

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the City has refused, however, to commit to amending the ordinances.

141. Mediacom shared concerns that, if the City followed its overlashing ordinances and

prohibited Mediacom from accessing the Conduit Network during Google Fiber’s Exclusivity

Period, Mediacom’s only options would be to: (1) not upgrade or expand its network for several

years; or (2) build its own underground conduit, which would likely be cost-prohibitive and would,

in any event, create a significant competitive advantage for Google Fiber, which would not have

to bear its own costs of building the conduit in which its fiber will reside.

142. The City has refused to commit to any plan to remedy this problem but has

emphatically informed Mediacom that it will not, under any circumstances, breach its promise to

give Google Fiber exclusive use of the Conduit Network during the Exclusivity Period.

143. The only purpose served by Google Fiber’s successive, eighteen-month Exclusivity

Period for each section of the Conduit Network is to ensure it will be the only ISP to provide

internet access via the Conduit Network to residents and businesses throughout the City for those

eighteen month periods.

H. The City Markets the Conduit Network as a Joint Endeavor with Google Fiber to
Provide High Speed Internet.

144. The City and Google Fiber are also jointly marketing the Conduit Network.

145. In the Fall of 2020, the City began an aggressive “Plant the Speed” marketing

campaign.

146. This campaign consists of mailings, newsletters, and a City-operated website.

147. The City’s marketing campaign is continuing as of the date of this filing.

148. The City’s marketing campaign presents the publicly owned Conduit Network and

the privately owned Google Fiber network as one and the same. The marketing boasts that the

conduit network will provide “hard-to-match speeds” and that it will be “always on.”

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These representations can refer only to the provision of actual internet services via the Conduit

Network. They cannot refer merely to the physical Conduit Network itself because the Conduit

Network is simply a series of pipes. It has no “speed” and cannot be “always on.”

149. Further, the representations can only refer to Google Fiber’s internet, since Google

Fiber is the only ISP that will be allowed to use the Conduit Network during the Exclusivity Period.

150. In the same vein, the City’s marketing materials also represent that the City and

Google Fiber are “partnering” to build and deliver the system that “will bring faster, more reliable

internet access” to West Des Moines residents.

151. The City is marketing goods and services provided by the public sector, in violation

of Iowa Code § 23A.2.

152. In addition to being unlawful, the City’s marketing materials are highly misleading,

misrepresent the quality of services Google Fiber will provide, and actively disparage the internet

services provided by other ISPs.

153. For example, the City’s marketing campaign represents that internet provided

through the Conduit Network will be “faster,” and “more reliable” than internet options currently

available to residents:

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154. Similarly, the City’s website contains a video suggesting that Google Fiber offers

the “highest quality” internet and that residents who switch to Google Fiber will no longer have to

“be[] furious because your internet isn’t…fast enough.”

155. Upon information and belief, the City conducted no rigorous testing or analysis to

determine whether Google Fiber’s internet services were equal, superior to, or “faster” than

internet that is available or will be available through other ISPs.

156. Upon information and belief, the City conducted no rigorous testing or analysis to

determine whether internet services provided through the Conduit Network will be more “reliable”

than other internet services that are available or will be available through other ISPs.

157. The City has no reasonable basis to promote Google Fiber’s internet as being

“faster,” “more reliable” or otherwise superior to internet provided by other ISPs.

158. The City’s marketing materials are misleading in other respects as well.

159. For example, the City’s marketing campaign gives the false impression that

residents who connect to the Conduit Network will receive free internet access, encouraging

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residents and business to “[g]et the best and fastest internet in Iowa” and recommending “fiber”

because “it’s free”:

160. In addition, some of the City’s marketing materials perpetuate the false impression

that the City is letting other ISPs use the Conduit Network:

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These materials fail to disclose to residents and businesses that they will have to pay for Google

Fiber’s internet and that in fact Google Fiber is the only “choice” residents will have via the

Conduit Network.

161. The City’s marketing materials also fail to disclose that other ISPs must wait until

“sometime in the future” to provide services through the Conduit Network because of the City’s

own negotiation and grant of Google Fiber’s lengthy Exclusivity Period.

162. Due to the nature of the terms of the Agreement between the City and Google Fiber,

the City’s marketing efforts are advertisements in Google Fiber’s favor.

163. The City’s marketing efforts are materially misleading, provide an anti-competitive

benefit to Google Fiber, and cause competitive harm to ISPs like Mediacom.

164. The City is actively seeking residents and businesses to “opt in” to the Conduit

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Network, whose primary function at this point is to subsidize access to Google Fiber’s service.

165. The City is not only conferring direct benefits upon Google Fiber—e.g., exclusive

infrastructure access and fee waivers—based solely on Google’s brand recognition and market

status. The City is now also actively advertising and marketing Google’s products and services, in

violation of Iowa law.

166. On November 13, 2020, Mediacom sent the City a letter detailing the false,

misleading, and defamatory nature of the City’s advertising campaign on Google Fiber’s behalf.

167. Mediacom demanded that the City cease publishing its false, misleading, and

defamatory statements and desist from repeating the offending statements in the future.

168. The City failed to respond to Mediacom’s letter.

169. As of the date of this filing, the City has made no changes to its advertising

materials and continues to knowingly and intentionally publish false, misleading, and defamatory

statements about Mediacom and other ISPs.

COUNT I – VIOLATION OF IOWA CODE CH. 403

170. Mediacom reincorporates the allegations in the foregoing paragraphs as if fully set

forth herein.

171. The City asserted that the URP and the Agreement were both approved pursuant to

the Urban Renewal Law.

172. The City also asserted that the $42.8 million in Bonds it planned to issue were

“General Obligation Urban Renewal Capital Loan Notes” issued under the Urban Renewal Law

and Iowa Code chapter 384 to cover the costs of a valid URP.

173. The URP, the Google Agreement, and the Bonds were approved contrary to Iowa

law and are invalid.

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174. The Urban Renewal Law grants municipalities certain powers to achieve the

legislative aims of the statute. Id. § 403.6.

175. But the powers granted by the Urban Renewal Law are not plenary, and they are

subject to explicit procedural and substantive limitations set out throughout chapter 403.

176. Defendants, however, exceeded those limits and violated the Urban Renewal Law.

177. The Legislature expressly set out the goals of the statute: to combat and remedy

problematic “slum and blighted areas” and “to alleviate and prevent conditions of unemployment

and a shortage of housing.” Id. § 403.2(1), (3).

178. To achieve those goals, municipalities are empowered to undertake “urban renewal

projects” if they satisfy certain statutory requirements. Id. § 403.5.

179. The local governing body of the municipality must “adopt[] a resolution finding

that [o]ne or more slum, blighted or economic development areas exist in the municipality” and

“designate[] the area as appropriate for an urban renewal project.” Id. §§ 403.4(1); 403.5(1).

180. An “economic development area” is statutorily defined as an area that is

“appropriate for commercial and industrial enterprises, public improvements related to housing

and residential development, or construction of housing and residential development for low and

moderate income families.” Id. § 403.17(10).

181. Under this statutory definition, a municipality’s authority to make general “public

improvements” under the Urban Renewal Law is limited in scope to improvements that are

“related to housing and residential development.” Id. (emphasis added). The term “housing and

residential development” is further limited to only include

single or multifamily dwellings to be constructed in an area with respect to which


the local governing body of the municipality determines that there is an inadequate
supply of affordable, decent, safe, and sanitary housing and that providing such
housing is important to meeting any or all of the following objectives: retaining

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existing industrial or commercial enterprises; attracting and encouraging the


location of new industrial or commercial enterprises; meeting the needs of special
elements of the population, such as the elderly or persons with disabilities; and
providing housing for various income levels of the population which may not be
adequately served.

Iowa Code § 403.17(12) (emphasis added).

182. This limitation is consistent with the legislature’s stated intent for the statute. See

id. § 403.2.

183. The statute does not give a municipality free rein to pursue whatever unrelated

“public improvement” projects it wishes in whatever area it wishes.

184. The local governing body must further adopt a resolution finding that “[t]he

rehabilitation, conservation, redevelopment, development, or a combination thereof, of the

[designated] area is necessary in the interest of the public health, safety, or welfare of the residents

of the municipality.” Id. § 403.4(2).

185. If, and only if, those and other preconditions are met, then an urban renewal plan

may be submitted to the municipality’s planning commission for its review and recommendations

“as to [the plan’s] conformity with the general plan for the development of the municipality as a

whole.” Id. § 403.5(2)(a). Following receipt of the planning commission’s recommendations or

after 30 days pass with no recommendations, the local governing body may hold a hearing on the

plan and may approve the plan. Id. § 403.5(2)(a), (4).

186. In this case, the City exceeded its authority—and violated the Urban Renewal

Law—in approving the URP and Bonds at issue in this case, in approving the exclusive Agreement

with Google Fiber, and in marketing its URP as coextensive with Google Fiber’s commercial

services as an ISP.

187. The URP, the City’s approval of the Bonds, and the Google Agreement exceed the

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legal boundaries of the powers given to municipalities under the Urban Renewal Law for several

reasons.

188. First, the City’s URP improperly classifies the entire city as a single monolithic

“economic development area.”1

189. The plain language of the statute grants municipalities certain powers only over

“slum and blighted areas” and “economic development areas.”

190. An entire City cannot be classified as an “economic development area” wholesale

without regard to the variety of residential and business locales. Otherwise the stated scope of the

Urban Renewal Law is illusory and the powers granted therein are plenary. This is contrary to the

face of the statute and its express legislative intent, which is to combat slums, blight, and

insufficient housing for middle- and low-income residents. See id. § 403.2.

191. West Des Moines is a wealthy, vibrant city.

192. The entire City does not and cannot qualify as an “economic development area.”

193. The City’s and the Council’s attempt to designate the entire municipality as an

“economic development area” violates chapter 403 of the Iowa Code.

194. Second, the City and the Council did not satisfy the requirement to adopt a

resolution designating the entire city as a “slum, blighted or economic development area” prior to

the submission of the URP to the Plan and Zoning Commission in late June 2020. Cf. id.

§ 403.4(1).

195. Upon information and belief, neither the City nor the Council completed any studies

or issued any findings to support the proposition that the entire City is “appropriate for commercial

1The only excepted portions of the municipality are agricultural parcels, which are automatically
excluded from urban renewal areas by statute. See Iowa Code § 403.17(3), (5), (10), (22).

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and industrial enterprises, public improvements related to housing and residential development, or

construction of housing and residential development for low and moderate income families.” Id.

§ 403.17(10).

196. To take advantage of the financing options provided by the Urban Renewal Law,

Defendants were required to issue a valid resolution properly designating the area under the statute

prior to the submission of the URP.

197. Defendants failed to adopt a conforming resolution and failed to identify a

cognizable “economic development area,” in violation of chapter 403 of the Iowa Code.

198. Third, the City and the Council did not satisfy the requirement to make findings to

support and then adopt a resolution that “rehabilitation, conservation, redevelopment,

development, or a combination thereof,” of the entire city is “necessary in the interest of the public

health, safety, or welfare of the residents of the municipality.” Id. § 403.4(2) (emphases added).

199. In addition to Defendants’ failure to adopt such a resolution, the URP is plainly not

necessary for any of the statutorily required purposes.

200. Therefore, Defendants’ approval of the URP and the Agreement violated chapter

403 of the Iowa Code.

201. Fourth, the buildout of a Conduit Network as contemplated in the URP is outside

the scope of a proper “urban renewal project” and the type of “public improvement” authorized

under chapter 403. See id. §§ 403.6, 403.12(1); accord Iowa Code § 384.37 (defining the term

“public improvement”).

202. The statute contemplates changes to troubled real property or the development of

specific kinds of residential housing in discrete portions of the municipality, which is consistent

with the statute’s primary purpose of combatting slum, blight and conditions of unemployment.

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Id. §§ 403.7, 403.8.

203. The URP far exceeds the scope of the mechanisms delineated in the statute for

achieving urban renewal goals and is in violation of chapter 403 of the Iowa Code.

204. In addition, the Google Agreement grants Google Fiber exclusive rights to the

Conduit Network, in violation of the City’s own ordinances which expressly prohibit the City from

entering into such exclusive contracts. See, e.g., West Des Moines Ordinance 7-2-2.

205. Fifth, the Bonds approved and issued by the City to finance the URP are invalid.

206. The URP exceeds the scope of the City’s authority under the Urban Renewal Law.

207. The City is not empowered by statute or any other law to approve or issue bonds

for a URP that exceeds the scope of its municipal authority under the Urban Renewal Law.

208. The Bonds also cannot be validly issued under Iowa Code chapter 384 because the

City’s URP is unlawful and chapter 384 does not otherwise authorize the City to approve or issue

General Obligation Bonds to construct the Conduit Network.

209. The Council’s approval of the Bonds is unlawful and invalid.

210. The City’s issuance of the Bonds is unlawful and invalid.

211. The City’s expenditures of funds derived from the approval and issuance of the

Bonds are unlawful and invalid.

212. Sixth, the Agreement and its predicate URP are tainted by impropriety.

213. There is an apparent conflict of interest in awarding a municipal monopoly to a

Google affiliate. Google retains Mr. McKinney, a member of the City Council and a board member

of the West Des Moines Chamber of Commerce, for his lobbying services in Iowa. Google’s access

to the City was therefore significantly greater than its competitors’ access. Mr. McKinney recused

himself from the relevant Council votes at the July 6, 2020 meeting; however, the conflict extends

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beyond the simple vote. The City’s negotiations with Google Fiber had been ongoing for

approximately six months prior to the vote, and Mr. McKinney’s relationship with Google extends

even further back than that time period.

214. Upon information and belief, the City Council did not adopt measures to ensure

that the member in question was not involved in or precluded from influencing those negotiations

or the City’s recommendation that the Council approve the Google Agreement.

215. Under these circumstances, Defendants’ award of the Google Agreement to Google

Fiber—following lengthy closed-door negotiations and a refusal to issue an RFP seeking bids from

other service providers—is beyond the scope of the municipality’s authority under Iowa Code

chapter 403.

216. Defendants’ many failures to comply with Iowa Code chapter 403 reveal that they

are misusing the urban renewal law to make an end-run around their finance and transparency

obligations. See generally, e.g., id. ch. 384.

217. The Council’s approval of the URP, the Bonds, and the Agreement with Google

Fiber violated Iowa law.

COUNT II – VIOLATION OF IOWA CODE CH. 388

218. Mediacom incorporates the allegations in the foregoing paragraphs as if fully set

forth herein.

219. Assuming for the sake of argument that the City had the legal authority to create

the Conduit Network, although it did not, the City was also required to comply with the provisions

of the Iowa Code controlling the establishment of a city utility. Id. § 388.2.

220. The Iowa Code defines a “city utility” to include, inter alia, any part of a “cable

communication” or “telecommunications” system that is “owned by a city, including all land,

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easements, rights-of-way, fixtures, equipment, accessories, improvements, appurtenances, and

other property necessary or useful for the operation of the utility.” Id. § 362.2

221. Pursuant to the City’s URP and Agreement with Google Fiber, the City is jointly

designing, testing, maintaining, and marketing the Conduit Network with Google Fiber.

222. The terms of the Agreement establish a revenue-sharing system whereby Google

Fiber remits payment to the City for each resident or business that connects to the Conduit

Network.

223. During the Exclusivity Period, Google Fiber will be the only ISP the City allows to

provide internet services through the Conduit Network.

224. The City’s marketing communications regarding its “Plant the Speed” initiative

presents its conduit build-out as coextensive with the provision of high-speed fiber internet service.

225. The City’s marketing communications publicly proclaim that “[t]he City of West

Des Moines is partnering with Google Fiber to build a conduit network . . . .”(Emphasis Added).

226. The City’s build-out, in conjunction with its Agreement with Google Fiber, make

clear that the City itself will own vital parts of the infrastructure needed to provide the advertised

internet services.

227. The City and Google Fiber are partnering to establish a de facto city utility to

provide a telecommunications service.

228. The Urban Development Law provides no authority for a municipality to construct

or operate a city utility or to use bonds issued pursuant to the Urban Development Law or Iowa

Code chapter 384 for this purpose.

229. Instead, Iowa law requires that the City can only establish a city utility with “the

approval of the voters of the city” at a general or special election. Id. § 388.2(1)(a)–(b). It cannot

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do so unilaterally through closed-door negotiations with a Silicon Valley tech giant like Google.

230. The voters of West Des Moines were deprived of their right to give or withhold

their approval of the City’s plan to construct, establish and undertake a city utility to provide

telecommunications services in partnership with Google Fiber and to establish an unlawful and

anticompetitive monopoly over the Conduit Network during the Exclusivity Period.

231. Therefore, Defendants violated Iowa Code chapter 388 in approving the URP and

the Agreement and with respect to the City’s marketing activities and other activities on behalf of

and for the benefit of Google Fiber.

232. In addition, Iowa Code § 388.10 prohibits municipalities from directly or indirectly

using general fund moneys to support or subsidize a telecommunications system.

233. Upon information and belief, the City has and intends to directly and indirectly use

general obligation bonds to support the construction and/or subsidize the operation of the City’s

joint telecommunications utility with Google Fiber, in violation of Iowa Code §§ 384.24 & 384.25

and 388.10.

234. The City’s de facto city utility is unlawful and invalid.

COUNT III – VIOLATION OF IOWA CODE CH. 26

235. Mediacom incorporates the allegations in the foregoing paragraphs as if fully set

forth herein.

236. Iowa law requires that contracts for certain public improvements funded in whole

or in part by a government entity be submitted for competitive bidding. Id. § 26.3.

237. The URP characterizes the Conduit Network as a “public improvement” pursuant

to Iowa Code chapter 26, and the City characterizes its Agreement with Google Fiber to collaborate

on the conduit network for the provision of Google Fiber’s services as a contract for a public

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improvement.

238. This includes, but is not limited to, the services Google Fiber is providing to the

City under the Google Agreement with respect to developing the specifications of the Conduit

Network and testing the structural integrity of its construction, which are essential parts of the

City’s construction process.

239. “If the estimated total cost of a public improvement exceeds the competitive bid

threshold of one hundred thousand dollars, or the adjusted competitive bid threshold established

in section 314.1B,” then the government entity must follow the statutory public bidding process

set forth in Iowa Code chapter 26.

240. If the estimated total cost of a public improvement exceeds the statutory threshold,

then Iowa law also prohibits a government entity from “divid[ing] the public improvement project

into separate parts, regardless of intent, if a resulting part of the public improvement project is not

let in accordance with section 26.3.”

241. Assuming for the sake of argument that the Conduit Network is a “public

improvement,” which to be clear it is not, then the City’s estimated cost of $50 million to design

and construct the Conduit Network far exceeds the statutory threshold for public bidding.

242. The Google Agreement retains Google Fiber to complete essential parts of the

City’s “public improvement” construction process.

243. The City did not publicly bid the components of its “public improvement” project

that it assigned to Google Fiber.

244. Regardless of its intent, the City’s decision to assign Google Fiber responsibility

for tasks critical to the construction of the Conduit Network had the effect of improperly removing

those aspects of the project from the public bidding process, in violation of Iowa Code § 26.5.

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245. At the City Council meeting, the Council heard public commentary objecting to the

City’s failure to publicly bid the Google Agreement and asking the Council to table the relevant

resolutions until competitive bidding could be completed.

246. The Deputy City Manager, who was the City employee responsible for

recommending that the Council pass the resolution approving the Google Agreement, inaccurately

told the Council that publicly bidding the Google Agreement would violate Iowa law.

247. Upon information and belief, in reliance on the Deputy City Manager’s advice, the

Council proceeded to vote and approve the resolutions without submitting the public improvement

project for competitive bids.

248. Defendants violated Iowa Code chapter 26 in approving the Google Agreement and

the URP Agreement.

249. Under Iowa law, municipal contracts and resolutions made in violation of a

mandatory statute are void.

250. The Agreement and the URP are in violation of the mandatory provisions of Iowa

Code sections 26.3 and 26.5 and must therefore be declared void.

251. In the alternative, the parts of the Google Agreement that were improperly divided

from the “public improvement” project, including, but not limited to, Google Fiber’s obligations

and responsibilities to participate in the design of the Conduit Network, as well as the “Exclusivity

Period” in which Google Fiber will “test” the Conduit Network should be declared unlawful and

severed from the Google Agreement.

COUNT IV – VIOLATION OF IOWA CODE CH. 23A

252. Mediacom incorporates the allegations in the foregoing paragraphs as if fully set

forth herein.

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253. Chapter 23A of the Iowa Code prohibits political subdivisions, including the City,

from, among other things, engaging in the sale, offering for sale or advertising goods or services

to the public which are also offered to the public by private enterprise. Id. § 23A.2.

254. The City is presently violating the statute by advertising Google Fiber’s internet

services through its Plant the Speed marketing campaign and by purporting to register residents

and businesses to be connected to the Conduit Network to receive internet services.

255. Furthermore, the City’s advertising campaign is predicated upon false and

misleading statements impugning the quality and reliability of internet services provided in West

Des Moines by Mediacom and other ISPs.

256. These sales and advertising activities are directed toward the public.

257. In addition, the City intends to sell or offer to sell internet services to residents via

the de facto city utility the City is creating in collaboration with Google Fiber.

258. Internet services such as those being advertised by the City are also provided by

multiple private enterprise ISPs in the City, including Mediacom.

259. These services are used by private residents and businesses. They are not used

solely by the City.

260. Mediacom, as an ISP operating in West Des Moines, is one of many businesses in

the City that are subject to unlawful, unfair competition due to the City’s unlawful advertising of

Google Fiber’s internet services.

261. Mediacom—along with all other ISPs operating in West Des Moines—is aggrieved

and harmed by the City’s conduct.

262. The City’s marketing and sales efforts regarding the conduit network and fiber

internet services are therefore in violation of the Iowa Code chapter 23A.

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COUNT V – VIOLATION OF IOWA CODE CH. 477A

263. Mediacom incorporates the allegations in the foregoing paragraphs as if fully set

forth herein.

264. Iowa Code § 477A.9 requires a municipality to allow the holder of a certificate of

franchise authority to install, construct, and maintain a communications network within a public

right of way.

265. Iowa Code § 47A.9 also requires a municipality to provide the holder of a certificate

of franchise authority with open, comparable, nondiscriminatory, and competitively neutral access

to the public right of way. Id. § 477A.9(1).

266. Mediacom is a holder of a certificate of franchise authority within the City.

267. Upon information and belief, Google Fiber has applied for, or will imminently

apply for, a certificate of franchise authority.

268. The City is developing and constructing a taxpayer funded Conduit Network for

Google Fiber in the City’s right of way and has granted Google Fiber a monopoly over the Conduit

Network for years to come.

269. The City has also granted Google Fiber a franchise fee credit, wherein Google

Fiber’s license payments for using the Conduit Network will be offset by franchise fees that

Google Fiber pays.

270. The City has imposed onerous permitting restrictions on Mediacom’s ability to

overlash aerial plant in excess of 300 feet, which significantly impedes Mediacom’s ability to

install, construct or maintain its above ground communications network within the City’s right of

way.

271. In many parts of the City, Mediacom will be unable to install, construct or maintain

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its communications network unless that network is placed in underground conduit because the

distances that it must run its pole-mounted cabling and other aerial plant to facilitate service

delivery are greater than 300 feet.

272. The City has refused to allow Mediacom to access and use the Conduit Network

during Google Fiber’s Exclusivity Period.

273. Mediacom will thus be forced to either: (1) not install, construct or maintain its

communications network in significant swaths of the City; or (2) build its own underground

conduit, at significant cost.

274. The City has unlawfully prohibited Mediacom, a holder of a certificate of franchise

authority, from installing, constructing or maintaining a communications network within the City’s

public right of way, in violation of Iowa Code § 477A.9.

275. The City has unlawfully refused to provide Mediacom with open, comparable, non-

discriminatory, and competitively neutral access to the City’s public right of way, in violation of

Iowa Code § 477A.9.

REQUEST FOR RELIEF

276. WHEREFORE, Plaintiff requests that this Court issue a declaratory judgment

declaring:

a. The URP is in violation of Iowa Code chapter 403, is invalid and cannot be further

implemented by Defendants;

b. The Bonds that the Council approved to finance the URP, and any Bonds that have

been or may be issued pursuant to that approval, are in violation of Iowa Code

chapter 403 and are invalid;

c. The Google Agreement is in violation of Iowa Code chapter 403, is invalid and

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therefore is terminable and/or unenforceable;

d. The City has established a de facto city utility in violation of Iowa Code chapter

388 which cannot be further implemented by Defendants without approval of the

voters of the city and compliance with the requirements of chapter 388;

e. The Google Agreement is in violation of Iowa Code chapter 26 and is therefore

void;

f. The City’s Plant the Speed advertising and sales campaign is in violation of Iowa

Code chapter 23A, and the City’s marketing activities are unlawful; and

g. The Agreement is in violation of Iowa Code chapter 447A and is therefore

terminable and/or unenforceable.

Plaintiff requests the Court grant an injunction to enjoin Defendants from further violations of

these provisions of Iowa law in relation to the URP, the Google Agreement, and the City’s

deceptive marketing campaign. Plaintiff further requests a judgment for costs, for reasonable

attorney fees pursuant to Iowa Code § 23A.4, and for any and all other relief that the Court deems

just and equitable.

39
E-FILED 2020 DEC 10 8:59 AM POLK - CLERK OF DISTRICT COURT

Dated: December 10, 2020 Respectfully submitted,

FAEGRE DRINKER BIDDLE & REATH LLP

Jacob D. Bylund (AT0001399)


Email: jacob.bylund@faegredrinker.com
Martin J. Demoret (AT0012261)
Email: martin.demoret@faegredrinker.com
David Yoshimura (AT0012422)
Email: david.yoshimura@faegredrinker.com
801 Grand Avenue, 33rd Floor
Des Moines, IA 50309
Telephone: +1 515 248 9000
Facsimile: +1 515 248 9010

Tyler A. Young (Pro Hac Vice Application


Pending)
Email: tyler.young@faegredrinker.com
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Telephone: +1 612 766 7000
Facsimile: +1 612 766 1600

40

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