Council attorney raises legal issues with Google Fiber proposal
The attorney of Nashville's Metro Council says that possible legal conflicts arise from a closely watched ordinance proposed to expedite Google Fiber and make changes to utility pole alignment more efficient.
Mike Jameson, director and special counsel to Metro Council, wrote in a legal analysis that the One Touch Make Ready ordinance, supported by Google Fiber, "appears inconsistent" with federal policy as it pertains to utility poles owned by privately owned providers, in this case AT&T. AT&T owns about 20 percent of Davidson County poles and Nashville Electric Service owns about 80 percent.
If AT&T finds the ordinance violates its contract with NES, given a potential conflict with federal regulation, "the ordinance may not be enforceable," Jameson wrote in an opinion released on Thursday. He said the proposed ordinance does not appear to conflict with federal regulations in regards to the NES-owned poles.
The memorandum was issued in advance of a Metro committee meeting Monday and a council meeting on Tuesday, where the ordinance is up for critical second of three votes. Google Fiber is supporting the ordinance, which is co-sponsored by 16 council members, and AT&T and Comcast are opposed to it.
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In a statement, Amol Naik, spokesman for Google Fiber, said, "We believe the ordinance is fully consistent with the FCC's rules."
As it stands, existing providers are required to move their own lines before a new provider can add another cable. On polls with multiple providers, the process can take several months for each pole to be made ready. Google Fiber has said the ordinance's passage "materially impacts our ability to move forward."
Legal issues raised by Jameson are similar to arguments that AT&T outlined in a lawsuit against Louisville, Ky., after the city passed a similar ordinance. AT&T argued the pole attachment regulation is under the jurisdiction of the Federal Communications Commission, not municipalities.
“AT&T has said from the beginning that Nashville Metro does not have authority to implement this ordinance," AT&T Tennessee spokesman Joe Burgan said in an emailed statement. "When Louisville enacted a similar ordinance earlier this year, AT&T sued the city in federal court making that argument. The court recently rejected Louisville’s motion to dismiss AT&T’s claim, and earlier this week AT&T filed its motion for summary judgment. Beyond that, AT&T will not comment on legal issues that are, or that could be, the subject of litigation.”
But Jameson, in his legal analysis, also acknowledged there are two arguments on the issue.
"Proponents of (One Touch Make Ready) will likely maintain that the ordinance does not conflict with federal policies, but instead furthers these policies by facilitating efficient broadband development," he wrote. "Opponents will note the potential conflict with federal policy — at least for privately-owned poles."
Lead bill sponsor Councilman Anthony Davis said in an interview prior to Jameson's statement that the Louisville lawsuit did not affect his interest in advancing the ordinance. While the concern of lawsuits comes up on occasion, the council tends to not back down based on that concern, he said.
"I'm standing by the policy of One Touch," Davis said. "I think it makes sense. What I'm hearing is everyone wants it, everyone wants the fiber speed, they want potentially new partners to come to the market and invest, so we can't cower to AT&T or whoever is going to maybe sue us one day."
Reach Jamie McGee at 615-259-8071 and on Twitter @JamieMcGee_. Reach Joey Garrison at 615-259-8236 and on Twitter @Joeygarrison.