FCC: No, Our Rules Are Not An Excuse For AT&T To Block Google Fiber In Louisville

Image courtesy of frankieleon

Despite recently putting many Fiber plans on hold, there’s still a decent chance Google might bring its high-speed internet service to Louisville. And where there’s the possibility of competition, lawsuits arrive to stop it. Some of those complaints invoke the FCC, but the Commission has now chimed in — and it’s saying, basically: Hey, not so fast! Leave us out of this; you’re on your own.

AT&T sued the city of Louisville way back in February, after the city passed an ordinance that would make it easier for competitors to come to town. (Charter, not wanting to feel left out, filed a very similar lawsuit in October.) The rule in question, a one-touch make-ready ordinance, is basically the same kind of law that’s being challenged in Nashville as well.

One-touch laws basically make it so anyone stringing up new cables on an existing utility pole can do it with, well, one touch: the new folks can literally touch and move an existing cable to make room for their own, as long as they give fair warning first, and so long as they don’t actually interfere with the cable or the service it provides. (You can move ’em, not cut ’em.)

Cities that want to woo Google Fiber to town routinely start with an ordinance like that, if they don’t have one, because without it, a new company (Google) would need to have someone come out from AT&T and Charter — and anyone else in town, like the electric utility — to come handle every single cable that needs moving at all on every single pole in the city they need to access. Multiply all those people times the 30, 45, or 60-day windows they usually have to make good on each request, and you can see that the timeline for installing new service would stretch out not just by months but by years or decades.

So that makes the flip side also true: if you can block the one-touch law, you may be able to block the entrance of a new competitor into your market, and keep all those juicy customer dollars for yourself.

Which brings us back to AT&T’s lawsuit. When you’re trying to block a law you don’t like, it makes legal sense to make as many different arguments as you can for why that rule shouldn’t be allowed. So in broad strokes, AT&T is making three different claims about the Louisville ordinance: that it breaks two different existing Kentucky state laws, and one federal one.

In the original complaint (PDF), AT&T contends that the FCC’s pole attachment regulations draw “specific lines to weigh and balance various competing interests,” and that the ordinance passed in Louisville conflicts with those procedures. Therefore, because of federalism and all, since the Louisville ordinance is in violation of a superseding federal law, it’s unconstitutional.

Yesterday, however, the FCC formally sent a letter (PDF) to the Justice Department requesting that it, in turn, file a statement in the case explaining why the existing FCC regulations have nothing to do with it.

In fact, the letter says, the FCC has routinely found that it is exactly this make-ready delaying tactic that prevents competition from being built swiftly, forming “significant obstacles” for new entrants. Those incumbent companies “have little incentive to cooperate, especially if the applicant will be a competitor,” the FCC notes. And since one of the FCC’s mandates is to protect and promote competition, helping block it would be a bit counterintuitive to say the least.

The FCC did create national-level guidelines about pole access and make-ready work, the letter continues, but Congress explicitly authorized individual states that have adopted their own policies to opt out of the federal ones. There are 20 of those states (plus D.C.) that have opted out in this “reverse pre-emption,” the FCC notes — and Kentucky is indeed one of them.

In short, the Commission notes, the federal pole attachment regulations “do not apply here.” And moreover, the one-touch make-ready ordinance directly supports the goals Congress has given the FCC to “encourage the deployment of advanced telecommunications capability” to all Americans in a “reasonable and timely basis,” so… they’re in favor.

The letter concludes simply: “For the reasons stated above, there is no conflict between the federal pole-attachment regulations and the Louisville ordinance,” the end.

That does mean one leg of AT&T’s three-legged legal stool is now swept out from under them in Louisville. However, they do still have the two claims about violation of state law to pursue. And in that, they can stay in company with Charter — the latter’s lawsuit makes note on page 20 that Kentucky has indeed participated in reverse pre-emption since 1981.

[via Ars Technica]

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