Litigation Building on One-Touch, Make-Ready as FCC Mulls Policy

Policy to make room for new internet infrastructure on utility poles remains fraught with uncertainty as three federal courts review the practice and the FCC mulls ways to remove broadband deployment barriers, telecom attorneys said in interviews last week. Frontier sued West Virginia this month in the U.S. District Court in Charleston, West Virginia, over a state law enacted in April requiring one-touch, make-ready (see 1704100057). The suit is like AT&T, Comcast and Charter challenges to OTMR local ordinances in Nashville and Louisville. Legal scraps are “microcosms” of the pending FCC infrastructure proceedings, said Ewell Brown's David Brown, a Texas attorney who represents municipally owned CPS Energy.

One-touch, make-ready allows one third-party contractor to move all incumbent pole riders' equipment in a single go to speed the process of making room for new attachments. Google Fiber is a big advocate of the practice to speed the company's entry into markets, but phone and cable incumbents resisted, raising safety and jurisdictional pre-emption concerns in suits. "There’s this continuing battle where the cities are claiming that it’s an issue of right-of-way regulation and the [incumbent] providers are claiming it’s an issue of pole-attachment rights,” Brown said. A wrinkle to the Louisville case is that Kentucky is a state that reverse pre-empted FCC jurisdiction on pole attachments, Brown said. Tennessee didn’t reverse pre-empt the federal agency, so the issue in Nashville is whether the city is pre-empted by the FCC. About half of states set their own pole-attachment rules; the others follow FCC regulations.

A ruling could come soon on the Louisville case since U.S. District Court there held oral argument three months ago and motions for summary judgment are pending, said Baller Stokes' Sean Stokes, a telecom attorney for local governments. The Nashville suit at the U.S. District Court in Nashville might take longer because the case stalled when its assigned judge resigned, Stokes said. The case was reassigned April 11 to another federal judge from the Eastern District of Michigan. Nashville “is waiting on a court decision regarding our motion to dismiss and the cross motions for summary judgment,” a city spokesman said.

Don’t expect quick decisions on either local case, Brown cautioned. “Depending on the staff and how much they know about state and federal pre-emption … it could be a while.” Decisions could be appealed, he said.

After West Virginia answers the complaint, "argument will be briefed in accordance with a schedule established by the court," a Frontier spokeswoman said. “We reserve the right to ask the court for earlier relief if our facilities become subject to any immediate risk of damage.” The West Virginia law "conflicts with and is preempted by" FCC pole attachment regulations and "violates the Contract Clause and the Fifth and Fourteenth Amendments of the United States Constitution," Frontier said in its July 7 complaint (in Pacer). Frontier earlier gave that position in an amicus brief supporting AT&T’s challenge against Louisville; Frontier isn’t a party in the Nashville case, the spokeswoman said.

Frontier suing West Virginia is significant because industry’s OTMR fight historically has been against cities, Brown said. The state law bucked the trend of legislatures taking power from cities, as seen most recently on small-cell wireless infrastructure siting, he said. Litigation against a state raises the issue’s profile, Stokes agreed. But West Virginia follows the federal pole attachment regime; it would be more interesting to see a lawsuit against a state that reverse pre-empted the FCC, he said.

While West Virginia never asserted pole attachment authority over the FCC, the state still has a “pretty strong argument,” Stokes said. Compared with cities, states “ostensibly have even more control over these facilities … and a better claim to say we’re doing this to facilitate availability of services,” Stokes said. West Virginia didn’t comment. The FCC defended Louisville’s one-touch ordinance last year when Tom Wheeler was chairman (see 1610310053). The agency declined comment now.

The FCC may need to provide guidance on the make-ready issue, but courts must decide how to “unwind or deal with existing contractual rights between parties,” Stokes said. Brown predicted incumbent providers “are eventually going to find it in their best interest to agree to a set of rules” on OTMR and other infrastructure issues. Even incumbents will benefit from the policy when they decide they want to add new facilities themselves, the attorney said. “It’s a step in the evolution toward being able to do other things like small cells.” Phone incumbents like AT&T that have resisted OTMR, but also have wireless divisions seeking to deploy small cells on utility poles, may find benefits to streamlined make ready, he said. Comcast and Charter Communications also are exploring wireless (see 1707270039).

An alternative way to spread one-touch policy is contracts between pole owners and attachers, said Brown. That’s how CPS Energy implemented the policy for its poles in San Antonio, and the municipal utility hasn't been sued, he said. Telecom companies wanting to use CPS facilities “had to agree to play,” the lawyer said. “Everybody saw that was in their interest.”