Court Clash on One-Touch, Make-Ready Muddies National Debate
Court decisions for and against local one-touch, make-ready policies may complicate larger broadband infrastructure policy debate, observers told us Monday. Last week in an order (in Pacer) on consolidated lawsuits by AT&T and Comcast, U.S. District Court Judge Victoria Roberts in Nashville permanently enjoined the city from requiring OTMR. But in August, U.S. District Court in Louisville rejected an AT&T lawsuit challenging that city’s similar OTMR ordinance (see 1708210045). After the Nashville order, a city councilman and AT&T urged the city to reopen private talks with companies about pole-attachment processes rather than perpetuate litigation.
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The Nashville ordinance “is preempted by federal law as applied to utility poles owned by AT&T and other private parties,” Roberts wrote. It “directly conflicts” with Section 224 and FCC pole attachment rules, of which Tennessee never opted out, she said. Roberts didn’t address state law because Tennessee follows the FCC pole attachment regime, as do more than half of the 50 states. A key difference in the Louisville case was Kentucky opted out of the FCC pole attachment regime; the judge there ruled that federal law didn't apply and the ordinance wasn’t pre-empted by state law (see 1708160052). Another similar case, still pending, is Frontier Communications' challenge of an OTMR rule in West Virginia, which also follows the federal regime (see 1709050031).
It’s odd to see two judges “rule directly opposite each other without some explanation,” said GrayRobinson’s Gary Resnick, a telecom attorney for local governments. He noted the Nashville decision didn’t refer to the Louisville ruling. The immediate practical effect in Nashville will be “delaying competitors' access to poles, which is key for overbuilding the incumbent systems,” he said.
Both decisions can stand “since they were issued by different courts that presumably judged them against different statutes,” said Sherry Lichtenberg, principal for telecom research and policy at the National Regulatory Research Institute. Lichtenberg wants to know what impact the differing decisions will have on the Broadband Deployment Advisory Committee and later FCC decisions in its broadband infrastructure rulemaking: “My question is whether the BDAC will take these two decisions into consideration as they codify the model state rules, or will they simply move forward as they have been doing?” BDAC approved some recommendations this month, but many issues remain unresolved (see 1711170016).
Nashville will decide its “next course of action in the near future,” said Metro Nashville Law Director Jon Cooper in a statement. Council Member Bob Mendes, who voted against the law, said the city government should resume private negotiations with companies that were happening before the council passed the ordinance (see 1609210065). “Further litigation would be time-consuming and distract the parties from the goal of deploying more high-speed access more quickly,” said Mendes: The city’s “energy would be better spent by convening the parties and finding a solution that everyone can live with.”
“AT&T stands ready to work with” Mayor Megan Barry (D), the city council, Nashville Electric Service (NES), Google Fiber, Comcast and others, said a statement. The carrier applauds the ruling, but it “does not change AT&T’s willingness to work with Nashville Metro and others to streamline and improve the way facilities are deployed across the Nashville area,” it said. “That was our position before the ordinance was adopted, and it continues.”
No company applied OTMR in Nashville, an NES spokesman said. “NES remains committed to helping provide the most efficient and effective deployment of broadband,” with safety and reliability the power company’s top priorities, he said. The litigation kept Google Fiber from applying OTMR in Nashville, a spokeswoman said.
The mandate's 15-day deadline for make-ready conflicts with the FCC’s 60-day deadline and “stands as a direct obstacle to the objective expressed by the FCC,” Roberts wrote. The judge rejected Nashville’s argument that the policy advances FCC goals by making the process more efficient. “This argument is unavailing; method and means are within the ambit of preemption," the judge wrote. “While the Ordinance may result in a more expeditious Make-Ready Process, it ignores one-half of the equation considered by the FCC -- i.e., 'safeguarding the network' -- and disregards the balance struck in adopting the 60-day deadline.” Roberts said AT&T and Comcast failed to establish that the ordinance also violates contract clauses of the U.S. and Tennessee constitutions.
Google Fiber is studying effects for the company’s Nashville deployment, its spokeswoman said. “We have made significant progress with new innovative deployment techniques in some areas of the city, but access to poles remains an important issue where underground deployment is not a possibility.”
The ruling pleased Comcast, a spokeswoman said. “Comcast will continue to support collaborative processes that accelerate broadband deployment in Nashville -- while safeguarding against unnecessary service disruptions.”