Brightspeed Sues Ala. City Over Blocking of Aerial Fiber Optic Network Build

After Brightspeed completed the underground portion of its network buildout, the city of Foley enacted the moratorium preventing the internet service provider from installing the aerial portion of the network necessary to connect customers and bring the network into operation, said the complaint. In addition, the city’s Utilities Board has refused to allow Brightspeed to make the necessary aerial attachments to existing utility poles to bring the network into operation, said the complaint. The Utilities Board began providing broadband internet service to Foley and surrounding areas in 2017, it said.

During 2023, Brightspeed began work to deploy its competing XGSPON network in the City. To do so, it needed to obtain permits from the city and work with the Utilities Board to obtain authorization to attach fiber optic cable to the Utilities Board’s existing poles throughout Foley. The company’s high-speed fiber broadband service would be a “formidable competitor” to the two ISPs in the market, Mediacom and the Utilities Board, the complaint said.

On Aug. 17, the plaintiff’s engineering and construction contractor, Byers Engineering, communicated with a Utilities Board representative regarding pole application procedures and notified the board that Brightspeed would be seeking to attach its cable and other facilities to a total of approximately 1,624 Utilities Board poles, the complaint said. Byers formally applied for the attachments on Aug. 28.

A Foley representative told Byers in October that Brightspeed didn’t need aerial permits from the city, and on Nov. 17, a Brightspeed agent received approval from city official to proceed with the build, the complaint said. The ISP received the necessary permits to install underground fiber optic cables and equipment and completed that stage. On Dec. 21, Byers was told the Utilities Board was completing its internal review and making preparations for poles that needed to be replaced before Brightspeed could attach, it said.

Brightspeed applied for and received authorization from the Utilities Board to attach fiber cable to an initial batch of 154 poles, the complaint said. The ISP received an invoice for payment on the first batch of attachments the Utilities Board had approved on Jan. 12 and paid the invoice that day, it said. The approvals didn’t specify which poles had been approved, it said.

On Jan. 16, at Foley’s scheduled city council meeting, the normal rules of procedure were suspended “in an effort to fast-track the vote and passage of the Moratorium without a proper hearing on the merits of the ordinance, or notice to those that it would impact,” alleged the complaint. Following the rules suspension, the council voted for “immediate adoption” of the moratorium, it said.

The temporary moratorium on new, above-ground overhead utilities was billed as a way “to promote and protect resiliency during disasters, enhance the efficient use of rights-of-way, and preserve the aesthetic appeal of public spaces.” It was drafted in a way that doesn’t apply to the incumbent providers, said the complaint: The Utilities Board installed above-ground overhead utilities before the date of the ordinance.

The moratorium effectively “and without warning suspended the construction of Brightspeed’s XGSPON network indefinitely,” the complaint said. Some 82% of Brightspeed’s XGSPON network in Foley requires the ability to attach to utility poles owned by the Utilities Board, and the remaining 18% underground portion “cannot be operated without connectivity from the above-ground portion," it said.

The moratorium establishes “barriers to Brightspeed entering the high-speed fiber market, which increases the likelihood that Mediacom and the Utilities Board are the only high-speed broadband providers,” alleged the complaint. The “market manipulation thereby limits competition and customer choice” and denies Brightspeed the ability to complete its “in-progress fiber deployment,” it said. That denies Foley citizens the benefit of competition in broadband and also affects citizens in adjacent communities “many of whom remain unserved today,” it said.

Deploying a high-speed broadband network in less densely populated areas is “very costly” and a reason why the communities haven’t had new investment in high-speed broadband or competitive offerings, said the complaint. It noted federal grant programs have been established to offset such costs and encourage broadband deployment in unserved areas; those grants will be made available on a competitive basis “to a single provider in each area." The grants, “along with the economies of scale arising from having a network and customer base in Foley, will enable the chosen provider to economically deploy a network and offer high-speed broadband internet access service in these unserved areas,” it said.

After communicating without success to city officials that the moratorium violates federal law and FCC rules, Brightspeed asked to be placed on the May 6 city council meeting agenda “and provided a draft amended ordinance for consideration that would allow the completion of Brightspeed’s pending aerial build,” the complaint said. The city didn’t add the proposed amended ordinance to the May 6 agenda, it said.

The moratorium “targets new providers entering the market to compete with the incumbents and imposes burdens only on them of a nature that creates a barrier to entry,” alleged the complaint. The stated purposes of the moratorium aren’t served by a “temporary barrier that applies only to one provider,” or new ones, said the complaint. The stated purposes would be fully realized only if they “applied equally to all providers -- and forced all utilities to remove all above-ground infrastructure” throughout Foley, it said.

Brightspeed seeks orders for preliminary and permanent injunctions preventing the moratorium from being enforced and declaratory judgment preventing the unlawful prohibition of the provision of telecommunications services. The ISP asserts claims of equitable estoppel and violation of Alabama Code section 37-16-4, which states that an electric provider must apply the same methodology it applies to determine pole attachment rates and conditions of access for pole attachments to its electric delivery system for its broadband services.