Why the dismissed 'Google Fiber' suit matters

Last week, U.S. District Judge David J. Hale dismissed what became known in Louisville as the "Google Fiber case," possibly setting a precedent for similar cases across the country.

The case was brought by BellSouth Telecommunications LLC, which operates as AT&T Kentucky, because of Louisville Metro Government's " One Touch Make Ready" ordinance. It passed in February 2016.

The legislation gave third-party internet service providers (Google Fiber, specifically) unfettered access to utility poles in the city — including those owned by AT&T — so the companies could run fiber and other cable for their own networks. The city saw the legislation as an important step toward improving Louisville's internet landscape.

AT&T sued Metro Government, contending that it was inappropriate and unfair for the city to make such an ordinance because AT&T (BellSouth) owned the poles and therefore controlled the right of way to them. AT&T owns about 42 percent of the city's utility poles.

Before the ordinance, every time a company wanted to move or install a line on the poles, AT&T had to be consulted, often resulting in several touches to make a single line move on the poles.

Louisville Metro Government contended that the poles should be under the jurisdiction of the city, which wanted to mitigate traffic and pedestrian disruptions by having one worker move all of the cables at once when changes were needed.

U.S. District Court Judge David Hale dismissed the case last week, ruling that the city has the right to control public rights of way, including utility poles.

"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," Judge Hale wrote in his decision. "Louisville Metro has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety."

Dannie Gregoire, who sits on the Mayor's Civic Innovation Advisory Council, said in an interview that it's the end of an era of telecom companies controlling the public domain.

"For the last 100 years, you have [had] telecom producers who have come in and said, 'Everywhere that we put a pole belongs to us,' and that isn’t right," he said. "They’ve played games that have kept other people off it. This decision helps end those games."

The judge's decision to dismiss the case has possible ramifications beyond Louisville. The case has been watched across the county because right-of-way problems are far-reaching. Nashville, Tenn., is facing a similar lawsuit from AT&T after passing its own One Touch Make Ready ordinance.

"This is a hugely important case. This is part of a national discussion about where the telecom industry ends and where public domain begins," Ted Smith, co-chairman of the Mayor's Civic Innovation Advisory Council, said in an interview. Smith also was the chief of civic innovation for the mayor's office for several years, including when the lawsuit was filed against the city.

"It's very clear to me that this is a win for local public domain, local public rights of way," Smith said. "This will be good for competitiveness, and it will be good for the ultimate investment and development of the market."

Smith said the decision paves the way to improve the city's infrastructure, which is good because more and more of everyday life will rely on internet infrastructure as technology continues to develop and integrate into the daily grind. Smith said it also will be encouraging to other communities, such as Nashville, that think they're in a gridlocked ISP landscape.

"You have communities all over the country that are frustrated with the amount of providers they have and the prices they’re paying," he said. "And this sends the message — cities like Louisville, Nashville, Chattanooga [Tenn.] — these cites are showing that these problems can be dealt with at the local level. Local leadership can tackle these things and win."

AT&T could still appeal the dismissal. Joe Burgan, a spokesman for the company, said last week that the company was considering its options and that no decisions had been made. AT&T declined to comment further.

AT&T has been deploying its own fiber option. A Tuesday release from the company said AT&T Internet 1000, which is its fiber service, now is available in more than 80,000 Louisville homes, apartments and small businesses.

Grace Simrall, the city's current chief of civic innovation, could not be reached for comment. Chris Poynter, communications director for the mayor's office, said in an email statement earlier this week that the mayor's office is very pleased with the ruling.

Google Fiber has developed other means of deploying fiber, such as with wireless technologies and through a process of burying cables called microtrenching, and these have helped the tech giant to start building its fiber network in Louisville. But the company still has made it a point to stand behind Metro Government throughout the course of the lawsuit. The Federal Communications Commission also supported the city during the lawsuit.

Google Fiber, which runs under Google's Access subsidiary, released a statement about the dismissed case:

"Google Fiber is thrilled with the decision confirming Louisville Metro's authority to enact the One Touch Make Ready ordinance. We have long said, and continue to believe, that local governments have the right to determine how to manage their rights of way and create processes that pave the way for broadband choice for their residents.

"One Touch Make Ready is an example of how cities can be leaders in lowering barriers to broadband deployment in their communities," the statement continued. "We congratulate Louisville Metro for its leadership and applaud other cities like Nashville that understand the value OTMR can deliver to residents. We hope to see this same forward-looking approach embraced by the Federal Communications Commission.”

Bridgett Weaver covers technology, banking, entrepreneurs and retail.

Louisville Business First


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