FCC Supports Louisville Ordinance in AT&T Lawsuit
The FCC supported one-touch, make-ready pole attachment rules in local jurisdictions, saying they're consistent with federal policies. In a letter Monday to U.S. District Court in Louisville, the commission rejected an AT&T argument that federal rules preclude the one-touch ordinance. The FCC statement could deal a blow to incumbents seeking to keep Google Fiber and other new entrants off the poles, a community broadband advocate said.
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"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,” the FCC said in the letter (in Pacer). “As recognized in the National Broadband Plan, one-touch make-ready policies seek to alleviate ‘a significant source of costs and delay in building broadband networks’ by ‘lower[ing] the cost of the make-ready process and speed[ing] it up.’”
The agency rejected the AT&T argument that federal pole attachment authority precludes Louisville from changing make-ready rules. “There is no conflict between the federal pole-attachment regulations and the Louisville Ordinance,” it said. Federal regulations don't apply because Kentucky is one of 20 states that has invoked reverse pre-emption under Communications Act Section 224(c), the agency said. The FCC didn’t weigh in on whether the Kentucky Public Service Commission pre-empts the city, which is AT&T’s other argument in the case.
The new words could have ramifications for AT&T’s separate lawsuit against Nashville, which passed its own one-touch ordinance. In Tennessee, unlike in Kentucky, the FCC has authority over pole attachments. “We are reviewing the Nashville case and considering our options,” an FCC spokesman told us.
The commission's letter got kudos from Google Fiber, the main proponent of one-touch, make-ready (OTMR) rules: “We fully support the FCC's conclusion that there is no conflict between the federal pole attachment regulations and the principles of OTMR.” Google decided last week to scale back its fiber push (see 1610260034). AT&T is still reviewing the FCC filing, a company spokeswoman said. Charter Communications, which separately sued the city, hasn’t changed its position that the ordinance could jeopardize quality for customers and emergency services, a company spokeswoman said. Louisville and Comcast, another company that sued Nashville, didn’t comment.
The letter could sway courts to side with cities on one-touch policies, said Institute for Local Self-Reliance Community Broadband Networks Director Christopher Mitchell. “Local governments are trying to encourage investment in fiber networks but have seen tremendous opposition from the large cable and telephone companies already on the poles,” he emailed us. “The FCC speaking out in favor of one-touch make-ready is a good sign for local governments. The judges in Nashville and Louisville are not telecom specialists, but the cities having the support of the FCC is an important piece of evidence as they decide how to rule on these cases.”
“Apart from the FCC’s jurisdictional statement on Kentucky’s authority over pole attachments, I think the larger point is the FCC’s statement, that as a general matter, one-touch make-ready policies are consistent with federal broadband deployment policies and applicable FCC regulations,” said Baller Stokes’ Sean Stokes, an attorney on local broadband issues. Some at the firm have worked with Google previously.