Nashville Asks Court To Dismiss Comcast’s Google-Fiber-Blocking Lawsuit

Image courtesy of Adam Fagen

It’s time for the next episode of everyone’s favorite legal drama, “Comcast and AT&T do everything they can to block Google Fiber from coming to Nashville.” Most court proceedings are a months- or years-long series of back-and-forth filings before any hearings on the merits ever take place, and this one is no exception. This time around, it’s Nashville’s turn to ask the court to hear it out.

First, the pre-credits recap of our previous installments: Google Fiber considered coming to Nashville, Tennessee. In order to make that happen, local officials put forward an ordinance that would basically make it possible for Google to access local utility poles without being stonewalled by the incumbents. The incumbents, as you can probably guess, did not like this.

Comcast and AT&T tried to write an alternative law that would suit them better, but to no avail. The Nashville metro council voted to adopt the original pole attachment proposal in September, and city Mayor Megan Barry signed it into law shortly thereafter.

The incumbents, which had been threatening to sue if the city adopted the law, wasted no time making good on their threats. AT&T got there first, filing suit just two days after the council adopted the measure. A month later, Comcast filed its suit too.

And that brings us to Nashville’s action this week, in which the city is asking the court (PDF) to dismiss Comcast’s lawsuit entirely, on the basis that it “fails to state a claim upon which relief can be granted.”

Basically, the city’s lawyers are saying, Comcast is intervening where the law doesn’t let it, and it’s not asking for anything that the court can give it.

The motion to dismiss argues that Comcast is out of its lane on basically every issue. First, because Comcast has not shown that the existing ordinance is pre-empted by federal law. And if it does somehow have a conflict with FCC regulations — which the Commission may not think it does — then the court should kick it over to the FCC anyway.

Second, the motion continues, Comcast hasn’t shown sufficiently that it has standing to file a state claim, and even if it can show standing, the suit fails on the substance, as the local government does in fact have the right to regulate the Nashville Electric Service’s rights-of-way (i.e. access to utility poles).

Third, Comcast hasn’t shown that its existing agreement with the city will actually suffer “the ‘substantial impairment’ necessary to establish a constitutional conflict.” That’s in response to the claim both Comcast and AT&T have made against the city that the new ordinance interferes so badly with their existing contracts that it violates both the Tennessee and United States constitutions.

“For these reasons,” the petition concludes, “the Metropolitan Government requests that this Court dismiss Comcast’s Complaint in its entirety and enter judgment declaring the Clime Once ordinance constitutional.”

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