The Nashville metro government wants a court to throw out a Comcast lawsuit that seeks to overturn rules designed to speed up deployment of Google Fiber. Nashville filed a motion to dismiss Comcast’s lawsuit in US District Court in Tennessee on Wednesday, saying that Comcast incorrectly claimed Nashville’s rules are preempted by state and federal law.
The case is about Nashville’s “One Touch Make Ready” ordinance that gives ISPs faster access to utility poles. One Touch Make Ready (also known as “Climb Once”) lets new competitors move existing ISPs’ wires in order to make room for new pole attachments, instead of having to wait for the incumbent ISPs to send work crews to move their own wires. The metro government passed the rules to help Google Fiber install wires faster, but both AT&T and Comcast are seeking to invalidate the ordinance.
“Comcast’s Complaint should be dismissed because it fails to state a claim upon which relief can be granted,” Nashville wrote. “Comcast has not demonstrated that the Metropolitan Government’s Climb Once ordinance is preempted by federal law. The enactment of Climb Once was a legitimate exercise of police powers to manage public rights-of-way. As it affects poles owned by the Nashville Electric Service (‘NES’), federal pole attachment law is inapplicable to those poles, so preemption does not apply. As it affects privately owned poles, there is no preemption because the FCC timeline [the time allowed for pole attachments] does not conflict with Climb Once ordinances—a position espoused by the FCC itself.”
Nashville asked the court to dismiss Comcast’s claim entirely and declare that the Climb Once ordinance is constitutional. But if the court finds that the ordinance does conflict with FCC regulations, Nashville’s motion “asks that the Court refer primary jurisdiction over this issue to the FCC.”
Comcast argues that the previous pole-attachment process protected public safety and prevented damage to existing networks. Google Fiber is offering service in parts of Nashville but says the old rules slowed down deployment because of long waits for AT&T and Comcast to make poles ready for new wires. Google Fiber is apparently still trying to expand service in Nashville despite recent layoffs.
Nashville also argued that Comcast is inappropriately making a legal claim on behalf of Nashville Electric Service, which owns most of the utility poles. “Comcast does not have standing to bring this claim on NES’s behalf,” Nashville argues. “To the extent that Comcast is empowered to bring this claim at all, it also fails substantively, as the Metropolitan Government is empowered through its Charter to govern its public rights-of-way.” In addition to the motion to dismiss, Nashville filed a memorandum of law supporting its position.
One Touch Make Ready ordinances are one of several strategies municipalities are using to boost competition in the home Internet service market, much to the chagrin of existing ISPs who don’t want to give up market share. Louisville, Kentucky, also has a One Touch Make Ready ordinance that it is trying to defend against a lawsuit filed by AT&T. The FCC recently weighed in on the Louisville case, saying that, “Historically, restrictions on access to utility poles have been a significant impediment to the deployment of competitive telecommunications services.”