Comcast is the second Internet Service Provider (ISP) suing the mayor and metro government of Nashville, Tennessee (pop. 680,000) to stop a new ordinance to give streamline access to utility poles in the city, reports Cnet.com news.

Comcast’s October lawsuit over the Google Fiber-supported One Touch Make Ready ordinance (OTMR) comes on the heels of AT&T's legal action in late September. We wrote about AT&T’s lawsuit shortly after the filing.

Cnet.com reported that most of the utility poles are owned by Nashville Electric Service (NES) or AT&T, but Comcast has wires on many poles and has control over how these wires are handled. “When Google Fiber wants to attach new wires to a pole, it needs to wait for Comcast to move its wire to make room, and this is where the new ordinance becomes controversial.”

Comcast’s lawsuit, filed in U.S. District Court in the Middle District of Tennessee, contends the AT&T-owned poles fall under the purview of the Federal Communications Commission (FCC) and not the city, and that Nashville Metro Council lacked authority to regulate NES poles, according to a story in the Tennessean newspaper.  The telecommunications carrier is asking for a permanent injunction to stop enforcement of the ordinance. 

Comcast reproduces AT&T's argument in Nashville - that the poles are within federal jurisdiction so the city does not have the authority to enforce such an ordinance.

Reverse Preemption In Louisville

Burlington Telecom is teaming with Green Mountain Transit to provide free high-speed Wi-Fi to commuters and GMT employees at the new transit center, reports Vermont Business magazine. The bus transit center opened on Oct. 13.

The magazine noted:

“A reliable high speed Wi-Fi connection on the Downtown Transit Center platform will improve the customer experience, allowing passengers to use their wait time more effectively as they work, connect with friends, or download an e-book to enjoy on the ride.”  

Burlington Telecom general manager Stephen Barraclough told Vermont Business:

 “The opening of the new Downtown Transit Center is a much needed development for the many who commute to and from Burlington daily, and provides an exciting opportunity to highlight Burlington’s powerful gigabit infrastructure as an accelerator for economic, educational and community benefit.” 

Burlington Telecom joins a growing list of U.S. communities that are making free high-speed Internet connectivity available at public transit stations and airports. 

Free Wi-Fi At The City Gateway

In April 2015, we noted that LUS Fiber began sharing its municipal Gigabit network with travelers at the Lafayette Regional Airport in Louisiana. Free Wi-Fi is available at the airport supported by LUS Fiber, allowing guests to check email, post to social media, and browse the Internet.

When big corporate incumbent providers fear a hint of competition from a new entrant, they pull out all the stops to quash any potential threat. One of the first lines of offense involves the courts. Iowa City now leases its fiber to Cedar Rapids based ImOn and to stop it, Mediacom is reprocessing an old argument. It didn't work the first time, but they are going for it anyway; this is another example of how cable companies try to hobble competitors; just stalling can be a "win."

A Lawsuit In Search Of An Offense

Mediacom has a franchise agreement with Iowa City to offer cable television services and it also provides subscribers the option to purchase Internet access and telephone services. As most of our readers are attuned to these matters, you probably already understand that just any old cable TV provider can’t come into Iowa City and set up shop. State and local law require them to obtain a franchise agreement, which often includes additional obligations in exchange for access to a community’s potential customer base.

According to a 2015 Gazette article, Mediacom provides annual payments for use of the public right-of-way, operates a local office, and provides free basic cable services to local schools and government buildings. These types of commitments are commonplace as part of franchise agreements and are small sacrifices compared to the potential revenue available to Mediacom.

ImOn started offering Internet access and phone services to Iowa City downtown businesses in January but the company does not offer cable TV services like it does in other Iowa municipalities. ImOn doesn't have a franchise agreement with Iowa City but Mediacom says that it should. They argue that, because ImOn has built a system capable of offering video service, it should also have to obtain a franchise agreement.

In August, U.S. District Court Judge Charles R. Wolle dismissed the case, stating in a nutshell:

AT&T lawyers filed suit against Nashville just two days after Mayor Megan Barry signed the new One Touch Make Ready (OTMR) ordinance into law. The Metro Council passed the proposal for the final time, and sent it on to the Mayor, on September 20th.

Seeking Out Streamlining

OTMR was proposed by Google Fiber, which wants to enter the Nashville market by deploying an aerial fiber network. In order to do that, they need to attach fiber-optic cables to utility poles around town, but the current process is cumbersome and will significantly delay the rollout. OTMR streamlines the procedure but would allow some one other than AT&T to manage the rearrangement of wires on all poles in the Nashville rights-of-way. The telecom giant owns about 20 percent of the poles in Nashville; the city’s electric utility, NES, owns the rest.

Three Arguments

AT&T seeks a permanent injunction to stop the city from enforcing the new ordinance. They argue the city does not have the authority to enforce the ordinance - that role is within federal jurisdiction through the FCC.

They go on to state that the Metro Council does not have the authority to pass the ordinance because, according to the city charter, only the Electric Power Board the has the right to pass regulations that deal with issues related to equipment, such as poles and the cable on them. 

AT&T also asks that the court grant a permanent injunction on the basis that they already have a contract with the city relating to AT&T’s wires that are on NES poles. The contract allows the company to handle its own wires and enforcing the ordinance would basically nullify that component of the contract.

What This Is Really About

The Sixth Circuit Court of Appeals issued their order on August 10th supporting the states of Tennessee and North Carolina in their challenge from an FCC decision from February 2015. Both states objected to the FCC’s decision to preempt state laws preventing municipalities from providing fast, affordable, reliable connectivity via municipal Internet networks. The Appellate Court Judges reviewed the legal arguments, the precedent, and the interplay between federal authority and state sovereignty. 

The impact of their ruling will affect more than a few pages in a law school text book. Access to high-quality Internet access positively impacts real people and businesses and, as Cecila Kang captures in her recent article in the New York Times, the people who depend on it fear the outcome if their state legislators take it away.

Family Farm Fear

Kang profiles Vick Family Farms, a family potato farm in Wilson, North Carolina.  The Vick family chose to invest in a processing plant when they learned that Wilson’s Greenlight would provide the necessary connectivity. Greenlight allowed them to increase sales overseas. Now, they may lose that connection:

“We’re very worried because there is no way we could run this equipment on the internet service we used to have, and we can’t imagine the loss we’ll have to the business,” said Charlotte Vick, head of sales for the farm.

As Kang notes in her article, the FCC has no plans to appeal the decision, so battles will resume at the state level. Advocates will need to be twice as vigilant because incumbents - the only ones that come out ahead from this decision - may try to push state legislators for even tougher anti-competitive state barriers.

Pinetops: Poster Child For Good Connectivity

Minneapolis, MN - The 6th Circuit Court of Appeals decided today to dismiss the FCC's February 2015 decision to encourage Internet investment in Tennessee and North Carolina. Tennessee and North Carolina had both restricted local authority to build competitive networks.

"We're disappointed that the FCC's efforts to ensure local Internet choice have been struck down," says Christopher Mitchell with the Institute for Local Self-Reliance. "We thank the FCC for working so hard to fight for local authority and we hope that states themselves will recognize the folly of defending big cable and telephone monopolies and remove these barriers to local investment. Communities desperately need these connections and must be able to decide for themselves how to ensure residents and businesses have high quality Internet access."

ILSR and Next Century Cities filed an Amicus brief in support of the FCC's position. View the Court's Opinion here.

Contact:

Rebecca Toews

rtoews@ILSR.org

612-808-0689

On the border of Kentucky and Indiana a fight is brewing as AT&T and Google Fiber have both announced plans to bring Gigabit Internet service to Louisville, Kentucky. Home to over half a million, the city could see major economic development with new ultra high-speed Internet access, but there’s a problem: the utility poles.

AT&T is suing the city over a “one touch make-ready” ordinance. On February 11, 2016, the Louisville Metro Council passed the ordinance in order to facilitate new competitors, i.e. Google Fiber. 

Utility Poles: Key to Aerial Deployment

Make-ready is the shorthand for making a utility pole ready for new attachments. Although it may seem simple, this process is often expensive and time-consuming. To add a new cable, others may have to be shifted in order to meet safety and industry standards. Under the common procedure, this process can take months as each party has to send out an independent crew to move each section of cabling. 

To those of us unfamiliar with the standards of pole attachment it may seem absurd, but this originally made sense. Utility poles have a limited amount of space, and strict codes regulate the placement of each type of cable on the pole. Competitors feel they have to fiercely guard their space on the pole and cannot trust other providers to respect their cables. Make-ready must involve coordination between multiple providers and the utility pole owners. For some firms, like AT&T, this is an opportunity to delay new competition for months.

Attorneys argued before the Sixth Circuit Court of Appeals on March 17th in the case of Tennessee and North Carolina vs the FCC. The attorneys presented their arguments before the court as it considered the FCC's decision to peel back state barriers that prevent local authority to expand munis.

A little over a year ago, the FCC struck down state barriers in Tennessee and North Carolina limiting expansion of publicly own networks. Soon after, both states filed appeals and the cases were combined.

You can listen to the entire oral argument below - a little less than 43 minutes - which includes presentations from both sides and vigorous questions from the Judges.

To review other resources from the case, be sure to check out the other resources, available here, including party and amicus briefs.

Cleveland Utilities (CU), serving Bradley County, is carefully searching for the best way to improve connectivity for its southeast Tennessee customers. After exploring a number of possibilities, CU sees a partnership with Chattanooga's EPB as the brightest opportunity but their collaboration rests on lawmakers in Nashville or the U.S. Court of Appeals.

The Need Is There, The Neighbors Are Close

CU President, Ken Webb knows the community needs and wants something better than AT&T for Internet access or cable TV from Charter Spectrum, especially in rural areas. Residents and business owners have gathered at community meetings. Local community leaders have passed resolutions asking the state to roll back restrictions and contacted CU directly but the utility's hands are tied as long as state barriers remain in place.

For over 7 decades, CU has served residents and businesses, providing electricity, water, and sewer. After a 2015 feasibility study revealed a $45 million estimate to build out a triple-play fiber to the entire county, CU began considering a limited pilot project.

They have been talking with their neighbors, EPB, about the possibility of partnering for some time Webb told the Times Free Press:

"We don't want to reinvent the wheel," Webb said Tuesday. "We continue to study our options (for adding telecommunications services), but we would prefer for the state to allow us to have the option of working with EPB."

Waiting...Waiting...Waiting

Right now, the prospect of fiber in Bradley County appears to hinge on two possible outcomes. First, if last year's FCC decision to roll back state barriers is affirmed by the U.S. Court of Appeals for the Ninth Circuit and legal review stops there, the EPB will not need to worry about a legal challenge.