In the first decision to consider the legality of a “one touch” make-ready ordinance, a federal district court in Kentucky upheld a City of Louisville law authorizing new attachers to utility poles to rearrange the pole attachments of other parties in order to complete their own make-ready work without prior notice to those existing attachers. The court considered the ordinance a valid form of local management of public rights-of-way that was not preempted by either the Kentucky PSC’s regulation of pole attachments or by any residual authority the FCC might have in a “certified” state like Kentucky.
In February 2016, the City of Louisville, Kentucky, enacted a “one-touch” make-ready ordinance (OTMR) that permits new attachers to utility poles to engage a utility-approved contractor to rearrange existing attachments on the poles in order to complete their own make-ready work without generally giving prior notice to the existing attacher. The ordinance provided that the attacher would be given advance notice and a 30-day opportunity to perform the work itself only if the work would “reasonably be expected to cause a customer outage.”
Although the OTMR process has given rise to significant disputes over compliance and network disruption, the first challenge to the ordinance was over the authority of the City of Louisville to adopt OTMR. AT&T, an ILEC video provider and pole owner in Louisville, sued the City to have the ordinance declared unlawful (BellSouth v. Louisville). AT&T alleged the OTMR ordinance was preempted by federal law, intruded upon the exclusive jurisdiction of the Kentucky PSC, and exceeded Louisville’s authority to manage its rights-of-way under Kentucky law. The FCC, under prior leadership, filed a controversial “statement of interest” in the case asserting that the OTMR ordinance was not preempted by federal law.
On August 16, 2017, the district court rejected AT&T’s claims, finding that Louisville’s OTMR ordinance was a valid exercise of the city’s “police power” authority under the State constitution to manage its public rights-of-way. The court reasoned that the ordinance reduced vehicular traffic impediments that might otherwise occur with multiple make-ready visits to a pole, and therefore distinguished the ordinance from the Kentucky PSC’s regulation of pole attachment rates, terms and conditions. The court further reasoned that because Kentucky has “certified” to regulate pole attachments in lieu of the FCC, the FCC’s jurisdiction to regulate pole attachments in Kentucky is entirely superseded even with respect to matters – like OTMR – that the PSC did not regulate. AT&T can appeal the decision to the Sixth Circuit.
Charter Communications has a similar suit pending in Kentucky challenging Louisville’s OTMR ordinance raising First, Fifth and Fourteenth Amendment claims (in addition to state law claims similar to those raised by AT&T) that may be decided next year. (Insight Kentucky v. Louisville)
Litigation also remains pending in the non-certified State of Tennessee, where both AT&T and Comcast have challenged the Nashville OTMR ordinance adopted in September 2016. The two cases have been consolidated into a single docket (BellSouth v. Nashville) where dispositive motions are pending.
