AT&T has sued the City of Louisville, KY over a recent ordinance that amends the rules about providing access to poles to a carrier that wants to build fiber. Louisville is hoping to attract Google or some other fiber overbuilder to the city.
But there has been no announcement that any such deal is in place. It seems the city is trying to make it more attractive for a fiber overbuilder to come to the city and so they passed an ordinance that allows a new fiber builder relatively fast access to poles. The ordinance gives a new fiber builder the right to rearrange or relocate existing wires on poles if the other wire owners on the poles don’t act to do so within 30 days.
AT&T opposes the measure, and their court case says, “The Ordinance thus purports to permit a third party… to temporarily seize AT&T’s property, and to alter or relocate AT&T’s property, without AT&T’s consent and, in most circumstances, without prior notice to AT&T.” They argue that a new attacher will cause service outages and create other problems with their network.
The real issue at hand in the case is if a City has the right to make rules concerning poles. Today there are basic pole rules issued by the FCC that lays forth the fact that a competitive telecom provider must be given access to existing poles, ducts and conduits. Such rights were provided by the Telecommunications Act of 1996. In reading the FCC rules you might think that a new attacher already has the rights that are being granted by Louisville. The FCC rules allow a new attacher to go ahead and put their wires on poles if the pole owners don’t act quickly enough to process the needed paperwork to allow this.
But the rub comes in when there is not a clear space on an existing pole. There are FCC and national electrical standards that require that there be certain spacing between different kinds of cables on poles, mostly to protect the safety of those that have to work in that space. If you’ve ever looked up at poles much you’ll notice that it’s not unusual for the distances between the different utilities to vary widely from pole to pole, meaning that whoever hung the cables was not paying a lot of attention to the spacing.
In the industry, when there is not enough of a gap to accommodate a new attacher, the existing wire owners have to move their wires to create the needed space. If there is not enough space after such a rearrangement then a new taller pole must be erected and the wires all moved to the new pole. The new attacher is on the hook for all rearrangement costs. This process is called ‘make ready’ work and is one of the major costs of getting onto poles in busy urban environments.
The FCC has granted states the right to make additional rules concerning pole attachments, and many states have done so. This lawsuit asks if a city has the same right to make pole attachment rules as is granted to the states – and so this is basically a jurisdiction issue. It’s the kind of issue that probably is going to have to eventually go to the Supreme Court if the loser of this first suit doesn’t like the court’s answer.
To put all of this into perspective, pole issues have often been one of the biggest problems for new telecom providers. Back in the late 1990s I had one client that wanted to get on about 10,000 poles and was told by the local electric company that they were only willing to process paperwork for about a hundred poles per week. I had another client back in that same time frame that was told by a rural electric company that they just didn’t have the time to process any pole attachment requests.
And as you can imagine, when getting on poles bogs down, a new fiber project also bogs down. This can be extremely costly for the company making the expansion because they will have already begun spending the money to build the new network and they will have a pressing need to start generating revenues to pay for it.
Across the country the conditions of poles vary widely. In some cities the poles are relatively short and they are crammed full of wires. In other cities the poles are taller and do not require much make ready work for a new attacher. But when the poles are not ready for a new attacher this can be a costly and time-consuming process. It’s going to be interesting to see if the courts allow a city to get involved in this issue in the same way that states can.