consultants are sandburs

Saturday, October 12, 2013

RAMSEY - FRANCHISE FEES - Government coercive power. Something fundamental.

When younger they had the draft. Young men, yes gender biased, were within a rule set, compelled to risk their lives in an Asian war that has since been universally recognized to have had no good and decent purpose, domino theories being a laugh now, given Russia going Capitalist, and China also, but in a Chinese way. The elite wanted war over what, rice? Michelin rubber plantations?

The point is under penalty of incarceration for refusal, 50,000 Americans were sent to a premature death without any sane justification. That is an example of government power, and an example of why we must think of best ways to constrain it. Never mind a lesser evil of the NSA spying on all of us, backdoors in software and Internet access, secret inquiries into what we check out of a library, today's hint of governmental tendencies to run amok.

Next, get local.

In a private contract situation, where a utility such as Connexus can impose a contract of adhesion on ratepayers - a take it or leave it, our way, with Connexus having clear unequal bargaining power and with there being no convenient market alternative.

And part of that contract of adhesion, default on payment and the power is turned off. They need not go to court to sue for money due, where conciliation court exists to minimize costs of litigating. They hold the big hammer and it can be justified as needed to have an orderly provision of power to everyone that everyone be made by some mechanism to pay, no freeloaders allowed. Bypass an electric meter and see what happens if it is detected.

THE FUNDAMENTAL GOVERNMENTAL POWER QUESTION, SHOULD RAMSEY, INDEED ANY GOVERNMENT, HOLD THE IMMEDIATE POWER TO SHUT OFF YOUR POWER IF YOU DO NOT PAY SOME IMPOSED MONTHLY TAX, AS AND WHEN SET DUE BY GOVERNMENT? SHOULD THERE BE SAFEGUARDS, DELAYS, ALL THE STUFF "DUE PROCESS" MEANS?

CLEARLY, NO TO THE FIRST QUESTION, YES TO THE SECOND. WITH STATE GOVERNMENT EVEN RECOGNIZING THERE MUST BE BOUNDS. THERE IS LAW AGAINST RESIDENTIAL SHUT-OFF IN THE DREARY COLD OF WINTER.

Now, there appears to be but one single statute on franchise fees; fictionally saying it is between a government franchisor and a public utility franchisee, a regulated contract situation (at least when cooperatives are not the utility player), that the government puts a fee on the utility having that express power in the course of a franchise or franchise extension negotiation.

The truth is the government and utility together have no great motive to not agree to something amenable to them, a tax and its flow-through to ratepayers, since ratepayers are, at the most fundamental level, constrained to have to do business with the anointed utility, which has power to impose largely any terms it wants onto ratepayers.

The situation stinks of the likelihood of the abuse - by agreement - that franchise terms will be structured so that if there is any default in the ratepayer paying the flow-through tax; without any due process concerns, the government will be assured that such obstreperous persons will promptly have electric services terminated.

That is how the pernicious thing will be enforced.

There will be no hearing where a case of unique need or cause for an exception can be made and heard and judged.

Some guy climbs a pole or goes behind your home to the meter, and shuts you off.

Is that how you, in theory and in practice, want to be subject to governmental taxation whim and fancy?

Remember, 50,000 dead in a pointless war; presently the NSA spying on electronic communication of citizens, the FBI going to your library; all behind your back, no notice required. That is how government can operate, with power.

Quite simply, I see great evil in a tax situation without due process as to a service termination for non-payment of a monthly indirect and retrogressive tax; and that is how the thing will be enforced since the franchise fee statute maintains the fiction that the "fee" is between two parties, government and utility, with Ramsey officials clearly admitting it is recognized as a tax on citizens because of a properly anticipated pass-through.

I like due process. I think that it was a concern over two hundred years ago when the Bill of Rights was made part of the Constitution; and I see a clear and improper abusiveness and lack of due process in the entire franchise fee dance. As things will doubtlessly be implemented. Because if shut-off does not follow upon declining to pay the tax, the government will have to sue to collect arrearages. I suppose the City Attorney, on a per-hour contract, would not mind that at all, but if you sue a ratepayer for the flow-through, how can you justify collecting against Joe Ratepayer when the judge looks at the statute and says, "Sir, this is between you and Connexus, isn't it, by the clear wording of this MS Sect. 216.36, which does not say a thing about ratepayers or collection rights of any kind against them."

Or am I wrong? Are there other statutory provisions that would apply? Or is the argument that, "Clearly, your Honor, legislative intent was to create a back-handed regressive tax on the ratepayers, never mind wording of the statute"?

It is Kafkaesque. Best word I can think of to describe it. Read "The Trial," then think of franchise fee matters in court.

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