Pole Riders Fight Louisville One-Touch Rule

"The ordinance conflicts with and is preempted by" FCC pole attachment regulations, AT&T said. "Louisville Metro had no authority to adopt the ordinance, because Kentucky law gives the Kentucky Public Service Commission exclusive jurisdiction to regulate pole attachments.” Kentucky law allows the Public Service Commission to override FCC pole attachment regulations, but not the city, the company said. It highlighted potential harm to consumers if a third party can move AT&T property without notifying the phone company or getting its consent. If there is network trouble, it will be tough for AT&T to locate the problem if it doesn't know where work is occurring or has been completed, it said.

CWA agreed the city measure is invalid by state and federal statute. “Inasmuch as the performance of work on the BellSouth communication facilities at issue in this case is reserved by contract to CWA-represented employees of BellSouth, granting judgment to BellSouth will render moot any claim by CWA against third parties for tortious interference with contract arising from any right asserted by a third party to perform work on the facilities,” the union said in its filing.

AT&T sued the city over the rule in February, and fleshed out its argument and requests for relief in the Wednesday filing (in Pacer). Afterward, the court clerk issued a summons to Louisville Mayor Greg Fischer (D), seeking answer to the AT&T complaint within 21 days. “It's our policy to not comment on pending litigation,” said a Fischer spokesman.

Worth the Risk?

“Local leaders view the litigation risk such as that faced in Louisville and elsewhere as more than worth it as local leaders view bandwidth for their constituents as both a necessary economic and community development tool,” said the Best Best law firm's Gerry Lederer, a local-government communications attorney. “Why is it that the same parties that have long been critical of local governments' rights-of-way management authority in the name of competition now seek to stifle efforts to promote meaningful competition in its infancy?”

Baller Stokes' Sean Stokes, an attorney on local broadband issues, said “local governments and others are looking at the use and adoption of one-touch policies as a means of dramatically reducing the cost and time of make-ready." They do that to facilitate "deployment and widespread availability of broadband within their communities,” he said.

Louisville and Nashville likely understood the “extreme likelihood of lawsuits” from incumbents, Institute for Local Self-Reliance Community Broadband Networks Director Christopher Mitchell emailed Thursday. “They recognize that unless they can break many tricks big cable and telephone companies use to restrict competition, they are in big trouble. … Local governments have to do something to stop these incumbents from harming their economies and quality of life.”

Free State Foundation President Randolph May said the cities’ actions appear unlawful due to lack of authority: "I'm in favor of actions by municipalities that are even-handed that facilitate the deployment of broadband networks and promote competition. But, just as was the case with regard to the FCC's muni preemption order, the most important value is the rule of law.”

One way cities could try to reduce litigation risk is to seek indemnification from competitive providers, said Ken Fellman, attorney on local government issues and ex-NATOA president. For example, in some cities that made cable franchise deals with competitors that might invite suits from existing providers, the rival offered to cover the city’s legal costs, he said at the NATOA conference last month in Austin. So far, Google hasn’t been willing to offer indemnification, he said. “Any kind of competition is good,” he said. “To the extent that it creates potential liabilities … you just have to minimize that as best you can.”

Google hasn't embraced the idea of indemnification. “I’m not aware of a situation where a private company indemnifies a community for enforcement of their own ordinance,” said Google Fiber State Policy Counsel John Burchett on a panel at the NATOA conference. "One-touch policy is not for Google alone," he said. “We aren’t asking for a one-off deal. We’re asking for a change in public policy for any new entrant. So it’s not about Google -- we don’t want it to be contractual where Google gets something.” Google didn’t comment now on the Louisville suits.

Mitchell rejected an argument in Charter’s suit that fair competition requires regulators to treat all players in a market alike. “Charter wants to pretend that it -- a massive cable firm that built to every premise in the Louisville under a monopoly many years ago -- should be treated the same as a firm trying to come in and compete with it? That is crazy. New entrants, especially those a fraction of the size of the nation's second largest cable company, are very different and have to deal with a far different environment than Charter did when building its network.”

But a Charter spokeswoman said: “It’s hard to see how AT&T and Google are a fraction of anyone’s size since both are two of the largest companies in America and considerably larger than Charter. The rules for us should be the same as those for our competitors. The current situation is like requiring [the Louisville basketball team] to use the NBA 3-point line, while its opponents use the closer college line.”