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Court Throws Out AT&T’s Effort To Block Google Fiber In Louisville

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Competition in broadband and cable is scarce at best. That’s in part because when a new player does try to build service somewhere, incumbents like AT&T will pull every legal maneuver they can to try and block it. But one court has now ruled on a contentious case in Louisville, KY, throwing out AT&T’s lawsuit and paving the way for competition to come to town.

The background

Running new wires, for a new broadband or TV service, is an expensive and complicated proposition. So when cities like Louisville want to pave the way for a new player to come to town, they pass rules making the process simpler.

One common regulation is called a One-Touch Make-Ready ordinance. Basically, they change the rules about city utility poles so that a new “attacher” can come string their wires up in one literal touch, without having to first get every existing incumbent to come move their own cable a few inches. The only caveats are that newbies have to give fair warning first, they can’t actually interfere with a cable or the service it provides. (You’re allowed to slightly shift existing cables, not cut them.)

With an ordinance like that in place, a company like Google Fiber can attach their own cable all the way down the street without first having to get the phone company, the cable company, the electric company, and anyone else who runs cables in an area to come each move their own wires ever so slightly first — a process that takes basically forever and costs a lot of money.

Louisville passed one such ordinance in early 2016, hoping to encourage Google Fiber to provide service in the area. But the incumbent telecom companies — AT&T Charter — both filed suit.

The lawsuit

AT&T filed its lawsuit against the Louisville government in Feb. 2016.

The company made several claims about why it thought the city’s rule was unlawful. In short, it argued that the city violated two state laws and one federal one. The FCC, however, formally sent a letter to the court (via the Justice Department) effectively saying that AT&T’s claim about the federal rule was bunk.

“There is no conflict between the federal pole-attachment regulations and the Louisville ordinance,” the FCC concluded after laying out the relevant laws.

District Court judge David Hale pretty much agreed with the FCC. Ruling in favor of the city, he dismissed AT&T’s claim [PDF].

Hale laid out all his legal reasoning in his opinion [PDF]. Neither AT&T’s federal nor local legal arguments hold any water, the judge determined, and so the court “concludes that the ordinance is valid and that Louisville Metro is entitled to summary judgment.”

What next?

AT&T can appeal the ruling if it chooses to. A spokesman for the company told local media, “We are currently reviewing the decision and our next steps.”

Google, meanwhile, said in a statement that it is “thrilled” with the decision, adding, “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.”

Although Google Fiber ceased expanding earlier this year, the company has said that it will continue to serve any city that where it already has a presence or has a build-out in progress. That seems to include not only Louisville, but also Nashville, which is facing extremely similar lawsuits to its own one-touch ordinance from both Comcast and AT&T.

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