Cities can speed up pole attachments by new ISPs, federal judge rules

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The City of Louisville, Kentucky can impose one touch make ready rules on utility pole owners, and maybe a lot of other cities can too. A U.S. district court judge threw out AT&T’s challenge to Louisville’s pole attachment ordinance on Wednesday (h/t to Ars Technica for finding the ruling). It was passed in 2016 to help clear the way for Google Fiber to begin hanging cables on poles occupied by AT&T in Louisville

Before Louisville passed its ordinance, independent ISPs had to wait for incumbent telecoms companies, like AT&T or Comcast, to move or otherwise readjust their wires to make room for the new guy – in other words do the make ready work on their own stuff. Google complained that incumbents were stalling, in an attempt to block competition. The Louisville city council listened, and passed an ordinance that said that Google, or any other new ISP, could rock up to a pole and do all the necessary work – move existing wires and install its own – all at once. Without asking permission from incumbents.

According to the City of Louisville, that single-step – one touch – rule for make ready work was justified by Kentucky law which allows cities to manage public right of ways. And the judge agreed

The ordinance mandates a one-touch make-ready approach, and a one-touch make-ready approach inherently regulates public rights-of-way because it reduces the number of encumbrances or burdens placed on public rights-of-way. It is undisputed that make-ready work can require blocking traffic and sidewalks multiple times to permit multiple crews to perform the same work on the same utility pole. The one-touch make-ready ordinance requires that all necessary make-ready work be performed by a single crew, lessening the impact of make-ready work on public rights-of-way. Louisville Metro has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety.

AT&T can appeal the decision, but hasn’t said whether it will.

Because this ruling comes from a federal court, it could have implications in California, which, like Kentucky, directly regulates utilities in general and pole attachments in particular, rather than relying on the Federal Communications Commission to do it. California and Kentucky law differs, though, so it’s not a green light for cities here to follow Louisville’s lead. But there’s no red light either. Call it a flashing yellow: proceed with caution.