Dead West Virginia OTMR Law Doesn't Block State Actions, NARUC Says

A federal court ruling that invalidated West Virginia one-touch, make-ready (OTMR) rules doesn’t stop states from making such rules if they first reverse pre-empt the FCC on pole attachments, said NARUC General Counsel Brad Ramsay Tuesday. West Virginia’s OTMR rules are pre-empted by federal law and the state may not apply or enforce them, U.S. District Court in Charleston, West Virginia, said in a Monday judgment (in Pacer). The court granted a joint motion for summary judgment by Frontier Communications, the West Virginia Cable Telecommunications Association (WVCTA) and Communications Workers of America (see 1803080028). The Public Service Commission didn’t “dispute that Article 4 conflicts with the Federal Communication Commission’s regulatory regime governing pole attachments,” nor that “Article 4 is preempted because of the conflict under the Supremacy Clause of the United States Constitution,” so “there is no issue for this Court to determine,” wrote Chief Judge Thomas Johnston in the four-page opinion (in Pacer). “The Court must enjoin the enforcement of Article 4.” Johnston noted future actions by the state legislature or others “could lead to the dissolution of the injunction.” The state commission declined comment. NARUC’s Ramsay emailed that the decision “says nothing about whether a state can” make OTMR rules. West Virginia never reverse pre-empted the FCC to regulate pole attachments itself, and the state conceded that in the case, he said. It doesn’t mean a state that reverse pre-empted the FCC can’t make such rules, or that West Virginia can’t now reverse pre-empt and then make OTMR rules, he said. The court ruling pleased WVCTA, said Executive Director Mark Polen in an interview. Cable companies weren’t causing problems, with the law really a “punitive statement against Frontier made by the legislature and some of their competitors,” he said. WVCTA didn’t see any companies try to invoke the OTMR rules after the law took effect last summer, he added. Polen heard some talk in the legislature about West Virginia reverse pre-empting the FCC on attachments, but it didn’t seem to have legs there or at the PSC, Polen said. WVCTA is “comfortable” following the federal regime, he said. A Frontier spokesperson applauded the ruling, emailing that the law “would have allowed unsupervised attachments on our poles that would have been potentially dangerous or unsafe to our employees and the public.” The spokesperson didn’t respond to Polen blaming Frontier for the state law. Pennsylvania last week said it's weighing reverse pre-emption (see 1806140057). Courts have clashed on the legality of local OTMR rules, with one federal court ruling against requiring the practice in Nashville and another supporting a similar ordinance in Louisville (see 1711270051).