A Further Muddying for Pole Attachments

The issue of putting fiber on poles just got a little more complicated. A U.S. District Court recently overturned a One Touch Make Ready law that had been passed in Nashville, Tennessee to enable easier access to poles by Google Fiber.

The Nashville Metro Council passed the One Touch ordinance last year, and the new law was immediately challenged by AT&T and Comcast, the two large incumbent providers in the area. The law suit is complicated because it looks at two sets of poles – the 20% of the poles in the market owned by AT&T and the 80% of poles owned by Nashville Electric Service (NES), a municipal electric provider.

For the AT&T poles the judge ruled that the law violated federal pole attachment rules. The Telecommunications Act of 1996 gave states the optional authority to regulate poles, but the State of Tennessee never took on that responsibility, so the poles in the state are still subject to FCC pole attachment rules. This differs from an earlier lawsuit in Louisville, Kentucky where that state had preempted FCC pole attachment rules. Here it seems pretty clear that the Metro Council doesn’t have the authority to override FCC rules.

The lawsuit also claimed that the ordinance was in violation of local rules. AT&T claimed that the city charter did not explicitly give the Metro Council the authority to set rules for the NEC poles. The court said that NES had the exclusive right by charter to regulate public rights-of-ways. The court said it agreed with the AT&T allegations but did not make a firm ruling since NES was not a named party in the lawsuit.

The Metro Council originally passed the One Touch ordinance because AT&T and other pole attachers like Comcast were slow-rolling Google Fiber requests to get onto poles. Even today, a few years later, there are thousands of outstanding requests by Google Fiber to get onto poles. The One Touch ordinance would have given Google Fiber the ability to attach to poles and to then handle the paperwork retroactively.

This suit got resolved at a time when the FCC is considering One Touch rules concerning wireless connections. The FCC is thinking about granting the same rights to wireless carriers that this ordinance would have given to Google Fiber and other fiber overbuilders. The FCC recognizes that pole attachments are perhaps the major impediment for the promised coming implementation of 5G networks.

Incumbent pole owners have been able to thwart fiber overbuilders for the last few decades. They can deploy numerous delaying tactics that still fit within the FCC pole attachment guidelines. It’s not clear if the contemplated FCC rules will also make it easier for fiber overbuilders – but my guess is that they won’t. This FCC is clearly favoring the big ISPs and wireless carriers – and so they are likely to grant the rules that the big companies want.

This potential dichotomy between the treatment of wireless attachers and fiber attachers is ironic, because 5G networks are going to require a lot of new fiber. The wireless companies are not going to be building all of the needed new fiber and are hoping for others to build for them. But if those fiber builders encounter the same resistance seen by Google Fiber, then One Touch rules for wireless transmitters will not alone solve the 5G deployment issues.

One of the most interesting aspect of the pole attachment issue is that Verizon and AT&T are two of the largest builders of fiber. These companies scream bloody murder when they encounter the kinds of delays in building fiber that AT&T is causing for Google Fiber in numerous markets around the country. But AT&T clearly wears two hats and they argue for easy pole attachments where they are building fiber and for maintaining barriers to other fiber overbuilders when they own the poles.

None of this is going to be easily solved without Congressional action. There are still going to be states that can preempt federal pole attachment rules if they so choose. And the FCC is going to find themselves unable to overcome the state/federal jurisdictional issue when they try to make a nationwide One Touch rule for 5G. Expect a lot more lawsuits before this gets resolved.

The Broadband Battle in Nashville

PoleThere is a regulatory battle going on in Nashville that is the poster child for the difficulty of building new fiber networks in urban areas. The battle involves Google Fiber, AT&T, Comcast, and the Metro Council and Mayor of Nashville, all fighting over access to poles.

Google Fiber wants to come to Nashville and needs access to existing poles. About 80% of the current poles are owned by the city-owned Nashville Electric Service with the other 20% belonging to AT&T.

The Metro Council recently enacted a new ordinance called the One Touch Make Ready (OTMR) law. This law would speed up the process called make-ready, which is the process for making room for a new wire to be hung on poles. Under the new rules, Google Fiber or other new pole attachers would be free to move wires belonging to another utility to make room for their new wires. And the new attacher must pay for the needed changes, at whatever rate the other wire owners bill them.

The FCC took a stab at this problem a few years ago and they allow a new attacher to add their cables to a pole without approval if the paperwork process takes too long. But those rules only apply to poles that don’t need any make-ready work – and in an urban area most poles need some amount of make-ready work to make room for a new wire.

Current make-ready rules require that the owner of each existing wire be notified so that they can move their own wire, as needed. As you might imagine, this means an overbuilder must issue  a separate request for multiple wire owners for each individual pole that needs to be modified, including detailed instruction the changes that must be made. Other pole owners are giving an opportunity to disagree with the recommended changes. And this whole paperwork process can’t even begin until the pole owner has first inspected each pole and decided on a make-ready solution.

As you can easily imagine, since many of the other companies with wires on poles don’t want competition from Google Fiber or any other new competitor, they do everything legally possible to delay this process.

What I find ironic about this process is that the current wire owners can drag their feet even if their own existing wires are in violation of code. The various industry codes dictate a specified distance between different kinds of wires in order to make it safe for a technician to work on the wires, particularly during bad weather. I’ve found that most poles in an urban area have at least one existing code violation.

It’s also ironic that the cable company can drag their feet in this process. I’ve heard numerous stories about how the installers for the original cable networks often went rogue and installed their wires without getting formal permission from the pole owners. At that time the telcos and cable companies were not competitors and so nobody made a big fuss about this.

It’s been reported that one City Council member tried to stop the new law from going into effect by introducing an alternate proposal – which supposedly was written by AT&T. That alternative law gave the incumbents 45 days to make changes, but also limited the fast pole response to 125 poles per week. In a City the size of Nashville there are tens of thousands, and possibly even more than 100,000 poles that might need to be changed – and so that limit basically means that it would take many years, even possibly decades for a new fiber provider to build a city-wide network.

The new One Touch rule would allow Google Fiber or others to make the necessary changes to poles if the incumbent wire owners don’t act quickly enough to move their wires. AT&T has already sued the City to block the new ordinance. They argue that the City has no authority to order this for the AT&T-owned poles. They also argue that this change will disrupt their service and put their customers out of business. The lawsuit is, of course, another delaying tactic, even should the City prevail.

There is little way to predict how the courts might decide on this. It’s a messy topic involving a complex set of existing and technical industry practices. Both sides have some valid concerns and good arguments to make to a court. Both sides also have access to the best lawyers and it will be an interesting court fight. But perhaps the most important thing to consider is that the existing rules can mean that it’s not economically feasible to build a new fiber network in a City – if so then something needs to change.