Comcast is the second Internet Service Provider (ISP) suing the mayor and metro government of Nashville, Tennessee (pop. 680,000) to stop a new ordinance to give streamline access to utility poles in the city, reports Cnet.com news.
Comcast’s October lawsuit over the Google Fiber-supported One Touch Make Ready ordinance (OTMR) comes on the heels of AT&T's legal action in late September. We wrote about AT&T’s lawsuit shortly after the filing.
Cnet.com reported that most of the utility poles are owned by Nashville Electric Service (NES) or AT&T, but Comcast has wires on many poles and has control over how these wires are handled. “When Google Fiber wants to attach new wires to a pole, it needs to wait for Comcast to move its wire to make room, and this is where the new ordinance becomes controversial.”
Comcast’s lawsuit, filed in U.S. District Court in the Middle District of Tennessee, contends the AT&T-owned poles fall under the purview of the Federal Communications Commission (FCC) and not the city, and that Nashville Metro Council lacked authority to regulate NES poles, according to a story in the Tennessean newspaper. The telecommunications carrier is asking for a permanent injunction to stop enforcement of the ordinance.
Comcast reproduces AT&T's argument in Nashville - that the poles are within federal jurisdiction so the city does not have the authority to enforce such an ordinance.
Reverse Preemption In Louisville
AT&T also filed a suit this past spring in Louisville, Kentucky, to stop the city from implementing a similar ordinance. As in Nashville, the city put the policy in place to encourage new entrants like Google by speeding along a cumbersome and time consuming make ready process.
In the Louisville case, however, the FCC submitted a Statement of Interest in late October addressing the issue of authority over poles. According to the document filed with the court:
BellSouth [AT&T] maintains in its motion for summary judgment that the Louisville Ordinance conflicts with, and is therefore preempted by, the federal pole attachment rules promulgated by the Commission under Section 224. That argument is wrong as a matter of law. The federal pole attachment regulations do not apply in Kentucky because Kentucky has filed a certification invoking reverse-preemption under Section 224(c) and has thereby opted out of the federal pole attachment rules.
The FCC exercises jurisdiction over pole attachments under Section 224 “only in states that do not so certify” that they regulate pole attachments…BellSouth is thus wrong to assert a conflict with the federal pole attachment rules in these circumstances.
As a result, the FCC has no jurisdiction over Kentucky’s poles. In fact, the Statement of Interest goes on to support OMTR policies, stating that:
”As a general matter, promoting the deployment of competitive broadband infrastructure through one-touch make-ready policies is consonant with the goals of federal telecommunications policy, the Communications Act, and applicable FCC regulations.”
Nashville Leaders Press On
Back in Nashville, officials expressed disappointment at Comcast’s lawsuit, but resolve at creating a better environment for competition.
“One Touch Make Ready has been litigated in the court of public opinion, and the public overwhelmingly supports this measure designed to speed up the deployment of high-speed fiber in Nashville. Now, we hope that this federal litigation is quickly resolved so that we can get on with the business of expanding access to gigabit Internet throughout Davidson County.”