Louisville Ruling Fuels Fight for One-Touch, Make-Ready Supporters

The court decision empowers local communities to adopt one-touch policies, said Gigi Sohn, aide to former FCC Chairman Tom Wheeler. Upholding Louisville's ordinance will encourage some cities to make similar policies, especially if the decision survives possible appeal, agreed Ewell Brown’s David Brown. But the court decision alone won't sway all local leaders, said the Texas attorney, who represents CPS Energy, a municipally owned utility that declared a one-touch policy for its poles. “Unless there’s an animating reason to adopt such an ordinance, like a provider’s insistence that such an ordinance is a prerequisite to its deployment of broadband, the cost of litigation isn’t likely worth the reduction of disruptive activities in the rights of way.”

One touch is “exactly what should be happening,” said Connecticut Office of State Broadband Policy Coordinator Bill Vallee. Like Kentucky, Connecticut asserted pole-attachment authority over the FCC. The Louisville decision might make it possible for a Connecticut locality to make a one-touch ordinance, but it would be legally safer for the state regulator to make a statewide policy, since the Public Utilities Regulatory Authority has authority over the public rights of way, he said.

The decision has no impact for similar legal fights in Nashville or West Virginia, argued West Virginia Cable Telecommunications Association Executive Director Mark Polen. The state industry group said the FCC pre-empts West Virginia’s recently enacted policy, which Frontier challenged. “The Louisville ruling was based on interpretations of the Kentucky State Constitution and Kentucky’s status as a ‘certified’ pole attachment regulator -- none of which apply in Tennessee and West Virginia,” Polen said. “The Court in the Louisville case did not rule on the merits of the claims we’ve raised in West Virginia.”

Brown agreed the Louisville decision largely interpreted Kentucky law and may be most persuasive in a separate challenge by Charter Communications against the same ordinance in the same court. “It will be less so in other states, such as Tennessee and others, where reverse preemption is not an issue,” the attorney said. But the court’s view of the ordinance as a police-power regulation exempt from pole-attachment regulations may translate to the other states because the Communications Act also recognizes such local authority, Brown said. “If a given ordinance does not conflict with Section 224 or FCC rules, it is likely that cities’ traditional and long-standing rights to regulate access to and use of the public rights-of-way will still be recognized.”

"The principles established by the case potentially can apply in any state," even though the court ruled in a state that reverse pre-empted the FCC, said Best Best’s Gail Karish, a local-government attorney in California. “The decision draws a clear line between local regulations adopted to manage public rights of way under local police power authority and the regulation of pole attachments,” and is “very positive” for localities in states that preserve local police power authority to manage public utilities in public rights of way." The ruling “underscores that local oversight of infrastructure deployment is a critical function of government as a means of protecting the public and as a means of expanding broadband,” said CTC Technology and Energy President Joanne Hovis.

OTMR supporters will cite the court decision as they fight for policies outside of Louisville, predicted Sohn. Google Fiber notified the FCC about the district court ruling in a Friday ex-parte letter in the commission’s wireline infrastructure rulemaking, docket 17-84. Google and Incompas each urged the FCC to take up one-touch policy on a national basis, in statements on the court ruling last week (see 1708170021).

A federal OTMR policy would stop possible “monkey business” by AT&T or other incumbents to ask state legislatures to pre-empt local ordinances, Sohn said. But an FCC rule seems unlikely with Ajit Pai as chairman, she said. The FCC under Wheeler supported Louisville’s OTMR ordinance. An FCC spokesman Monday pointed us to the FCC’s April wireline infrastructure NPRM seeking comment on “potential benefits and drawbacks” of OTMR.

Any FCC policy would apply only to states that didn't reverse pre-empt, but federal rules often are models for state policies, a competitive broadband industry official said. In states that declared a waiver from FCC pre-emption, the Louisville decision may provide legal authority for petitioning the state utilities regulator to make OTMR a statewide policy, Vallee said. Phone companies objected earlier to one touch in Connecticut, but the court ruling “can’t hurt” arguments to implement the policy, he said.

AT&T continues to mull next steps after the Louisville ruling, the carrier’s spokeswoman said Monday. In an ex-parte presentation Thursday to FCC staff in docket 17-84, the company said any one-touch approach needs “appropriate safeguards.” They include limiting the practice to “routine transfers only,” using pre-approved contractors and a unionized workforce and notifying incumbent pole riders at least 30 days in advance, AT&T said. New attachers should pay for inspection and any corrections caused by their make-ready work, and “indemnify all parties for any liability arising out of that work,” the carrier said.