AT&T and Comcast have solidified a court victory over the metro government in Nashville, Tennessee, nullifying a rule that was meant to help Google Fiber compete against the incumbent broadband providers.
The case involved Nashville’s "One Touch Make Ready" ordinance that was supposed to give Google Fiber and other new ISPs faster access to utility poles. The ordinance let 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.
But AT&T and Comcast sued the metro government to eliminate the rule and won a preliminary victory in November when a US District Court judge in Tennessee nullified the rule as it applies to poles owned by AT&T and other private parties.
The next step for AT&T and Comcast was overturning the rule as it applies to poles owned by the municipal Nashville Electric Service (NES), which owns around 80 percent of the Nashville poles. AT&T and Comcast achieved that on Friday with a new ruling from US District Court Judge Aleta Trauger.
Nashville’s One Touch Make Ready ordinance "is ultra vires and void or voidable as to utility poles owned by Nashville Electric Service because adoption of the Ordinance exceeded Metro Nashville’s authority and violated the Metro Charter," the ruling said. Nashville is "permanently enjoined from applying the Ordinance to utility poles owned by Nashville Electric Service."
The Nashville Electric Service declined to take a position on the validity of the ordinance, and it said in a court filing last month that it "has no objection to the Court entering the declaration and injunction sought by Plaintiffs [AT&T and Comcast]." The utility’s neutral stance helped AT&T and Comcast win the case.
The court previously ruled that the Nashville ordinance is preempted by federal law when it comes to poles owned by AT&T and other private parties.
Nashville won’t appeal
The Nashville government isn’t planning to appeal the decision, a spokesperson for Nashville Mayor Megan Barry told Ars today.
"While Metro is disappointed in the court’s decision, at this point we don’t anticipate pursuing an appeal," the spokesperson said. "As a result, the One Touch Make Ready ordinance will not be enforced in Nashville. We hope that advancements in technology and construction methods for high-speed Internet will address the problems intended to be solved through this legislation."
Google Fiber has been using "microtrenching" to install fiber underground in parts of Nashville and other cities, but it is still frustrated by long waits in getting access to utility poles.
"The company has launched service in several Nashville neighborhoods and in apartment and condo buildings," The Tennessean wrote this week.
When contacted by Ars today, a spokesperson for Google Fiber said the ISP "has made progress with innovative deployment techniques in some areas of the city, but access to poles remains an important issue where underground deployment presents challenges, especially for new providers working hard to enhance broadband access and competition. We continue to support the city of Nashville in its efforts to expand access to super-fast Internet to residents."
Google Fiber was not a party to the case, which was disputed between the incumbent ISPs and local government.
Despite Nashville’s loss, it is not impossible for local governments to enforce One Touch Make Ready rules. The federal preemption of local rules does not apply in states that have opted out of the Federal Communications Commission’s pole attachment rules. Louisville was able to beat an AT&T lawsuit against its own One Touch Make Ready ordinance in part because Kentucky had opted out of the federal pole attachment regime and imposed its own rules.