AT&T falsely claimed pro-Google Fiber rule is invalid, FCC says

The Federal Communications Commission has given a helping hand to Louisville, Kentucky, in the city’s attempt to enforce local rules that would make it easier for Google Fiber to compete against AT&T.

AT&T sued the local government in Louisville and Jefferson County in February to stop a One Touch Make Ready (OTMR) ordinance designed to give Google Fiber or other new competitors faster access to utility poles. Today, the US government submitted a statement of interest (full text) on behalf of the FCC, which says that one of AT&T’s primary legal arguments is incorrect.

AT&T—also known as BellSouth Telecommunications in Kentucky—argued that the Louisville ordinance is preempted by the FCC’s pole-attachment rules. The local ordinance “conflicts with the procedures created by the FCC, and upsets the careful balances struck by the FCC in crafting its pole attachment regulations,” AT&T’s lawsuit said.

But that is false, the FCC says.

The FCC does have rules ensuring reasonable access to utility poles, but states are allowed to opt out of the federal pole-attachment rules if they certify to the commission that they regulate the rates, terms, and conditions of pole attachments. Kentucky is one of 20 states that has opted out of the federal regime and imposed its own rules, the FCC noted.

“Accordingly, the federal pole-attachment regulations enacted under Section 224 [of the Communications Act] simply do not apply here,” the FCC wrote. More generally, One Touch Make Ready rules are consistent with federal communications policies and regulations that seek expanded broadband deployment, the FCC also wrote.

AT&T told Ars that it is reviewing the FCC’s filing but has no comment yet. AT&T’s lawsuit claimed that because of FCC rules, it is allowed to take 60 days or more to modify wires to accommodate new pole users such as Google Fiber. But AT&T’s federal preemption argument isn’t the only one it makes; the company also argues that Louisville lacks jurisdiction to regulate pole attachments under Kentucky state law.

Google Fiber and other companies that want to attach wires to utility poles often must wait for the poles’ existing users to move their own wires and make room for new ones. One Touch Make Ready ordinances let a single company make all of the necessary wire adjustments on utility poles itself instead of having to wait for incumbent ISPs like AT&T to send work crews to move their own wires.

The FCC’s court filing said this “make ready” work often causes delays for companies that seek to compete against those that already have wires on the poles. Existing users of the poles have little incentive to move quickly if the new pole user is a competitor, the FCC noted.

“In many cases, the pole owner is itself a telecommunications provider that competes with—and therefore has incentive to impede or discriminate against—new attachers seeking access to the pole,” the FCC said. But this process can cause delays whether the pole is owned by the existing ISP or a different entity, the FCC said.

“Historically, restrictions on access to utility poles have been a significant impediment to the deployment of competitive telecommunications services,” the FCC said. The Louisville ordinance “prevents pole owners or existing attachers from needlessly delaying or impeding the deployment of new competitors,” the FCC said.

Most of the Louisville poles used by AT&T are owned by AT&T itself or by Louisville Gas & Electric.

Charter also sued Louisville to stop the One Touch Make Ready ordinance, and Frontier has supported AT&T’s lawsuit against Louisville. Separately, AT&T and Comcast each sued Nashville, Tennessee, over a similar One Touch Make Ready ordinance.

Google Fiber expressed gratitude to the FCC for its filing in the Louisville case.

“We’re pleased to see that the Federal Communications Commission this morning filed a supportive statement in the Kentucky court with regard to the AT&T lawsuit over One Touch Make Ready, a common sense measure passed by Louisville earlier this year to bring superfast Internet to residents more safely and quickly,” a Google Fiber statement said. “We fully support the FCC’s conclusion that there is no conflict between the federal pole attachment regulations and the principles of OTMR.”

Google Fiber struggles, and AT&T celebrates

Google Fiber is cutting staff and pulling out of some cities where it tentatively planned to build, but it’s continuing to operate in Nashville and says it still plans to build a network in Louisville.

While filing lawsuits that could stall Google Fiber’s progress, AT&T has simultaneously been taking public victory laps in response to the Alphabet-owned ISP’s struggles. AT&T wrote a blog post in August, when the first reports of layoffs surfaced, lecturing Google Fiber about the challenges of broadband investment, and the company wrote another self-congratulatory blog post last week after Google Fiber confirmed the layoffs.

“We don’t take shortcuts,” AT&T’s most recent post said. “This is about good old-fashioned hard work, not new-age marketing promises that fall short in the end.”

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