Nashville Urges Court to Reject AT&T, Comcast Pole-Attachment Lawsuits
FCC rules don’t preclude Nashville’s one-touch, make-ready ordinance, the Tennessee city told a federal court Wednesday. The city urged the court to reject AT&T and Comcast lawsuits at the U.S. District Court in Nashville, where the providers argued the ordinance…
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is pre-empted by the FCC’s pole-attachments authority. In reply (in Pacer), Nashville said FCC rules promote quick turn-around of existing pole attachers moving equipment to make poles ready for newcomers. The rules do not, as providers claim, guarantee existing attachers at least 60 days to move the equipment, the city said. Rather, the rule says they must set a make-ready date “no later than” 60 days after receiving notice from the new entrant, Nashville said. While providers claim anything less than 60 days will threaten public safety, they’ve previously negotiated with the Nashville Electric Service to move attachments in half that time, it said. The municipality pointed to the FCC’s support of one-touch, make-ready ordinances in a similar AT&T lawsuit against Louisville, Kentucky (see 1610310053). "The FCC explicitly acknowledged that the 'obstacle' that pole attachment rules seek to overcome is 'removing barriers to infrastructure investment and by promoting competition in the telecommunications market,’” Nashville said. Under the FCC pole-attachment regime, states can opt-out of the federal rules, but Tennessee hasn't. "Plaintiffs badly wish to distinguish this Statement on the basis that Kentucky, unlike Tennessee, is an opt-out state, but the FCC Statement supported Climb Once ordinances without qualification," the city said. "And contrary to Plaintiffs’ arguments, there is clear authority that a Statement of Interest constitutes an official position of the agency and is given the same deference as a legal brief." Providers say their pre-emption claim should be settled in the courts rather than the FCC, but the independent agency possesses the authority to settle the matter, Nashville said.