Louisville Wins One in Pole Attachment Battle

A big issue for competitive providers entering a market is gaining access to poles. Indeed, one of the reasons that Google Fiber has switched its focus from wired to wireless is the difficulty it claims to be having placing cables on poles. The procedure, according to competitive providers, is made as difficult and drawn out as possible by incumbents looking to forestall competition.

It’s a long battle, which is characteristic of all legislative and regulatory imbroglios. The competitive providers won an important interim legal victory last week. U.S. District Court for the Western District of Kentucky, Louisville Division, upheld Louisville’s right to control how cables are managed on the city’s poles.

The procedure is called one touch make ready (OTMR), which providers entering a market would like to see deployed. In short, OTMR approaches remove the incumbent as a significant player in the pole attachment process. In the Louisville implementation, a utility approved contractor working for the competitive company in most cases can move cables and attach the newcomer’s without informing the incumbent. The ordinance, according to JD Supra, stipulates that the incumbent must be given 30 days’ notice only if it can “reasonably be expected to cause a customer outage.”

The suit, which was brought by AT&T, found that the city indeed has the right to enforce the ordinance:

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.

The legal wrangling is not near conclusion. Ars Technica points out that Charter is also suing Louisville. It is similar to the AT&T suit, but goes further by alleging that the city has given preferential treatment to Google and AT&T. The suit appears headed to trial.

One ray of hope for those who like these issues to be settled without years of back and forth is that Verizon is seeking a solution. In a June blog post, the carrier backed OTMR regulations that sound more or less like those put in place by Louisville. The post sets up its position by pointing out that efficient processes are needed as thousands of small cells are added in anticipation of 5G. In other words, Verizon is not backing OTMR because it is in the best interest of all. It is advocating it because it is best for Verizon.

The interesting issue is that other carriers, whose businesses more or less mirror Verizon’s, still appear to be playing a defensive game. Perhaps they will adopt Verizon’s position and a fair nationwide approach can be established.

Carl Weinschenk covers telecom for IT Business Edge. He writes about wireless technology, disaster recovery/business continuity, cellular services, the Internet of Things, machine-to-machine communications and other emerging technologies and platforms. He also covers net neutrality and related regulatory issues. Weinschenk has written about the phone companies, cable operators and related companies for decades and is senior editor of Broadband Technology Report. He can be reached at cweinsch@optonline.net and via twitter at @DailyMusicBrk.