NEW SCOTLAND — Last week, Clarksville attorney Peter Henner filed another lawsuit — this time to stop the state from giving away $500 million — in his bid to make internet access available for all New Yorkers, particularly those in rural areas like New Scotland where access is spotty or non-existent.

“Broadband will get faster and faster, and better and better,” Henner told The Enterprise in February. Rural communities “are going to get nothing, and be excluded from the 21st Century,” he said.

The Alliance for Environmental Renewal, led by its president, Henner, filed a lawsuit on May 5 against Empire State Development in New York State Supreme Court, Albany County. The alliance hopes to stop ESD from distributing any of the $500 million that was appropriated by the New York State Legislature to improve broadband access.

“The lawsuit alleges that ESD’s methodology for distributing the money will deny funds for broadband expansion for communities that desperately need it,” Henner wrote in a statement.

“This lawsuit is a direct challenge to their guidelines — the way they plan to allocate $500 million,” he told The Enterprise this week. “The legislature said it should go to areas that need it.”

In February, Henner filed suit against the state to release public records from the governor’s Broadband Program Office in time to allow rural areas to meet a March deadline to apply for broadband access.

The legislature appropriated $500 million in 2015 to provide New Yorkers access to the internet.

“The Governor’s Broadband Program Office, part of Empire State Development, plans to only distribute this money to applicants who promise to provide 50% matching funds, and to strictly apply cost-effectiveness criteria which will exclude the unserved communities who were the intended beneficiaries of the legislative appropriation,” Henner wrote.
Rather than using the $500 million to bring internet access to rural areas to provide access to all New Yorkers, Henner said that broadband extensions in rural areas have been deemed too expensive. Rural access with no internet access or access less than 10 megabytes per second is being cut from the ESD’s plan to implement the legislation in favor of upgrading existing internet services in other areas to 100 MB per second, he told The Enterprise.
“It appears to be the intention of the Governor’s office to subsidize the improvement of existing broadband service, while ensuring that the 1 million New Yorkers who presently do not have reasonable Internet access will not receive it,” Henner wrote.

The governor’s office referred The Enterprise to the ESD, which did not respond before press time.

“The governor’s office is acting illegally when they disregard the legislature’s intention,” Henner told The Enterprise. “This case does not occur in a vacuum. It’s symptomatic of a larger problem.”

Henner referred to the Buffalo Billion scandal, an economic-development plan for Western New York that, he said, resulted in Andrew Cuomo’s staff receiving large fees, shows how the governor allocated money, and how “economic development money is spent, in general.”

Henner wants the lawsuit against the ESD to address “a serious problem” that has allowed state funds to be “used as the governor’s agenda, and to reward his friends,” he said.

Henner’s case will be heard in Albany County Supreme Court on May 20; he expects the state to move to dismiss the suit on procedural grounds, he said.

Henner will argue that, because the state constitution separates the duties of the legislative and executive branches, the ESD is violating the constitution by “trying to implement its own policies,” he said.

“There are no secrets about what I’m doing here,” he said. Henner will also ask for a temporary restraining order against the ESD to make sure it does not begin to allocate money before the case is complete.

“If the money is spent, we can’t get it back. Once the money is gone, it’s gone,” Henner said.

In New Scotland, geography plays a role in internet access: mountains and ridges block satellite Internet signals, while some regions are not wired for cable, partially due to the expense of working in rock.

“I want to make a push for everybody,” Henner said earlier. “Diverting it to people who already have it is wrong, insulting, and hypocritical.”