Broadband Networks: FCC Says “One-Touch” Ordinance Does Not Violate Federal Law

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The FCC has advised a federal district court that the City of Louisville, Kentucky’s “one-touch” make-ready ordinance does not violate the pole attachment provisions of federal law.

Companies seeking to build new broadband networks (like Google Fiber) claim that they are unable to obtain reasonable access to utility poles to hang their wires. They claim, among other things, that pole owners and other companies attached to the pole – often their competitors – do not perform the “make-ready” work on poles required before new equipment can be attached.

The City of Louisville passed an ordinance that permitted new entrants to perform make-ready work themselves using a contracting company certified to perform work on the poles. This so-called “one-touch” policy permits one entity to perform all the work required to create space on an existing pole for new entrants. Other communities, including Nashville, Tenn., have followed suit.

Louisville was promptly sued by Charter and AT&T, which argued that the ordinance violated Kentucky law, and also violated the federal pole attachment law, 47 U.S.C. section 224, which directs the FCC to set pole rates and terms and conditions for pole access unless a state has certified that it will regulate pole attachments. The federal argument is essentially that the FCC’s rules governing pole attachment already set terms and timetable for “make-ready” work, and localities and states can’t supplement those rules. Other communities that have adopted “one-touch” rules are facing challenges similar to those raised in Louisville.

This week, the FCC filed a “Statement of Interest” with the district court in the Louisville litigation stating that the claim that the Louisville ordinance violated federal law is meritless. The FCC gave two reasons for its conclusion. The first is that Kentucky has assumed responsibility for pole attachments, so federal law simply does not apply. The FCC made it clear it was not expressing any opinion as to whether the Louisville ordinance violates Kentucky state law.

However, 30 states don’t regulate pole attachment rates, and the first part of the FCC ruling is of no help in those states. The FCC did not directly rule that states and localities can adopt one-touch rules where section 224 applies. But the FCC’s second reason for supporting Louisville’s position should cheer supporters of one-touch legislation: The FCC ruled that “As a general matter, promoting the deployment of competitive broadband infrastructure through one-touch make-ready policies is consonant with the goals of federal telecommunications policy, the Communications Act, and applicable FCC regulations.” It does not resolve the issue, however, and cities considering one-touch make-ready ordinances can expect to be challenged on state and federal law grounds for now.

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