In a victory for broadband overbuilders, a Louisville, Ky., U.S. District Court Judge has ruled that a local "one touch make ready" ordinance related to access to utility poles is within the city's right to manage rights of way, granting a city request for that summary judgment and denying AT&T's request that it declare the ordinance unlawful and block enforcement.AT&T and the Louisville Metro Council had filed cross motions for summary judgment, and the city prevailed.
AT&T had sought to overturn the "one touch" ordinance, which had been sought by Google Fiber, that made it easier for competitors to AT&T (BellSouth), like Google, to attach to utility poles, including rearranging existing BellSouth attachments without providing notice to AT&T beforehand unless it would cause an outage. Comcast also filed suit, citing a conflict with FCC pole attachment rules.
But the FCC, under then chairman Tom Wheeler, weighed in with the court to say that the FCC's pole-attachment rules did not supersede the local "one touch" ordinance.
AT&T had told the court that the ordinance improperly allowed competitors to “seize AT&T’s property, and to alter or relocate AT&T’s property, without AT&T’s consent and, in most circumstances, without prior notice to AT&T" and that the Kentucky PUC, not the Louisville Metro, had exclusive jurisdiction to regulate pole attachments and was preempted by federal law, in this case FCC regs implementing that law that differed from Louisville’s ordinance.
The court concluded that the ordinance was within Louisville's police powers and that "regulating public rights-of-way is an express purpose of the ordinance."
It also pointed out to the FCC's advisory that its pole attachment jurisdiction does not extend where states have otherwise regulated them.
“Today’s court decision in Louisville is a win for competition, consumers and local communities who have been leading the fight against broadband monopolies who are blocking faster speeds, better service and lower prices, said Chip Pickering, CEO of INCOMPAS, which represents competitive carriers including Google Fiber.
“One choice is not a choice. It’s a monopoly. We hope the FCC will heed the call of local communities like Louisville and adopt “One Touch, Make Ready” to speed broadband deployment, boost local investment and create more jobs. Implementing “One Touch, Make Ready” policies, streamlining small cell deployment and freeing apartment and condo residents from monopoly-controlled buildings should be a national priority.”