AT&T and Comcast lawsuit has nullified a city’s broadband competition law

Bad news for Google Fiber: Nashville utility pole ordinance invalidated by judge.

AT&T and Comcast have convinced a federal judge to nullify an ordinance that was designed to bring more broadband competition to Nashville, Tennessee.

The Nashville Metro Council last year passed a "One Touch Make Ready" rule that gives Google Fiber or other new ISPs faster access to utility poles. The ordinance lets a single company make all of the necessary wire adjustments on utility poles itself, instead of having to wait for incumbent providers like AT&T and Comcast to send work crews to move their own wires.

AT&T and Comcast sued the metro government in US District Court in Nashville, claiming that federal and local laws preempt the One Touch Make Ready rule. Judge Victoria Roberts agreed with AT&T and Comcast in a ruling issued Tuesday.

Google Fiber is offering service in Nashville despite saying last year that it was waiting for access to thousands of utility poles.

"We're reviewing [the] court ruling to understand its potential impact on our build in Nashville," a Google spokesperson said this week, according to The Tennessean. "We have made significant progress with new innovative deployment techniques in some areas of the city, but access to poles remains an important issue where underground deployment is not a possibility."

AT&T poles

The case centered on two sets of utility poles: those owned by AT&T and those owned by the municipal Nashville Electric Service (NES).

The Nashville ordinance is preempted by federal law when it comes to poles owned by AT&T and other private parties, the judge ruled. The Federal Communications Commission has jurisdiction to regulate pole attachments for privately owned poles except when states opt out of the federal regime.

"Tennessee has not opted out of FCC jurisdiction over pole attachments," Judge Roberts wrote.

In August, a similar One Touch Make Ready rule in Louisville, Kentucky survived despite another AT&T lawsuit. Kentucky is one of 20 states that has opted out of the federal pole attachment regime, giving Louisville a leg up over AT&T in that case.

Utility-owned poles

While AT&T owns nearly 20 percent of the poles, the NES utility owns around 80 percent.

AT&T and Comcast argued that NES has sole authority to regulate the terms of pole attachments for NES-owned poles, and that the Metro Nashville Council therefore overstepped its authority.

The court agreed with AT&T and Comcast's argument, saying, "It is clear that the [Metro Nashville] Charter grants NES broad, unencumbered power to manage and control the properties of the Electric Power Board. It expressly denies that power to the Mayor, the Council, and any other agency of the Metro Nashville government."

The court declined to make a final ruling on NES-owned poles, but AT&T and Comcast could get what they want soon. Nashville Metro argued that the claim should be dismissed because NES failed to join the case despite being an "indispensable party." But the judge is letting AT&T and Comcast amend their complaints in order to add NES as a party in the case.

NES previously told the court that it is "agnostic to the validity of the ordinance." Unless NES changes course, a ruling would be automatically entered in favor of AT&T and Comcast.

NES will be asked to make a statement on whether it intends to take a position. "If it continues to have no position, the Court will enter the declaration and injunction sought by Plaintiffs," the judge wrote.

Nashville Metro could appeal the ruling, but hasn't said whether it will do so. “We are reviewing the court’s decision and will make a determination regarding our next course of action in the near future," Jon Cooper, Nashville Mayor Megan Barry's law director, told The Tennessean.