lawsuit

Comcast Follows AT&T's Litigious Lead In Nashville

Comcast is the second Internet Service Provider (ISP) suing the mayor and metro government of Nashville, Tennessee (pop. 680,000) to stop a new ordinance to give streamline access to utility poles in the city, reports Cnet.com news.

Comcast’s October lawsuit over the Google Fiber-supported One Touch Make Ready ordinance (OTMR) comes on the heels of AT&T's legal action in late September. We wrote about AT&T’s lawsuit shortly after the filing.

Cnet.com reported that most of the utility poles are owned by Nashville Electric Service (NES) or AT&T, but Comcast has wires on many poles and has control over how these wires are handled. “When Google Fiber wants to attach new wires to a pole, it needs to wait for Comcast to move its wire to make room, and this is where the new ordinance becomes controversial.”

Comcast’s lawsuit, filed in U.S. District Court in the Middle District of Tennessee, contends the AT&T-owned poles fall under the purview of the Federal Communications Commission (FCC) and not the city, and that Nashville Metro Council lacked authority to regulate NES poles, according to a story in the Tennessean newspaper.  The telecommunications carrier is asking for a permanent injunction to stop enforcement of the ordinance. 

Comcast reproduces AT&T's argument in Nashville - that the poles are within federal jurisdiction so the city does not have the authority to enforce such an ordinance.

Reverse Preemption In Louisville

AT&T also filed a suit this past spring in Louisville, Kentucky, to stop the city from implementing a similar ordinance. As in Nashville, the city put the policy in place to encourage new entrants like Google by speeding along a cumbersome and time consuming make ready process.

In the Louisville case, however, the FCC submitted a Statement of Interest in late October addressing the issue of authority over poles. According to the document filed with the court:

BellSouth [AT&T] maintains in its motion for summary judgment that the Louisville Ordinance conflicts with, and is therefore preempted by, the federal pole attachment rules promulgated by the Commission under Section 224. That argument is wrong as a ma er of law. The federal pole attachment regulations do not apply in Kentucky because Kentucky has filed a certification invoking reverse-preemption under Section 224(c) and has thereby opted out of the federal pole attachment rules. 

The FCC exercises jurisdiction over pole attachments under Section 224 “only in states that do not so certify” that they regulate pole attachments…BellSouth is thus wrong to assert a conflict with the federal pole attachment rules in these circumstances. 

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As a result, the FCC has no jurisdiction over Kentucky’s poles. In fact, the Statement of Interest goes on to support OMTR policies, stating that: 

”As a general matter, promoting the deployment of competitive broadband infrastructure through one-touch make-ready policies is consonant with the goals of federal telecommunications policy, the Communications Act, and applicable FCC regulations.”

Nashville Leaders Press On 

Back in Nashville, officials expressed disappointment at Comcast’s lawsuit, but resolve at creating a better environment for competition.

In a statement, Nashville Mayor Megan Barry said:

“One Touch Make Ready has been litigated in the court of public opinion, and the public overwhelmingly supports this measure designed to speed up the deployment of high-speed fiber in Nashville. Now, we hope that this federal litigation is quickly resolved so that we can get on with the business of expanding access to gigabit Internet throughout Davidson County.”

BT Brings Free Wi-Fi To New Burlington Transit Center

Burlington Telecom is teaming with Green Mountain Transit to provide free high-speed Wi-Fi to commuters and GMT employees at the new transit center, reports Vermont Business magazine. The bus transit center opened on Oct. 13.

The magazine noted:

“A reliable high speed Wi-Fi connection on the Downtown Transit Center platform will improve the customer experience, allowing passengers to use their wait time more effectively as they work, connect with friends, or download an e-book to enjoy on the ride.”  

Burlington Telecom general manager Stephen Barraclough told Vermont Business:

 “The opening of the new Downtown Transit Center is a much needed development for the many who commute to and from Burlington daily, and provides an exciting opportunity to highlight Burlington’s powerful gigabit infrastructure as an accelerator for economic, educational and community benefit.” 

Burlington Telecom joins a growing list of U.S. communities that are making free high-speed Internet connectivity available at public transit stations and airports. 

Free Wi-Fi At The City Gateway

In April 2015, we noted that LUS Fiber began sharing its municipal Gigabit network with travelers at the Lafayette Regional Airport in Louisiana. Free Wi-Fi is available at the airport supported by LUS Fiber, allowing guests to check email, post to social media, and browse the Internet.

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"We know that businesses choose to come to Lafayette for a variety of reasons and many have cited our 100% fiber-optic network as one of those reasons,” said City-Parish President Joey Durel. "As a gateway to Lafayette, we want visitors to experience the ultra high speeds of a Gigabit Internet connection, from the moment they arrive to the moment they leave."

The Locals Love It

In Burlington, the Keep BT Local! Cooperative started in 2012 with a goal of transforming the troubled muni into a telecommunications cooperative and is still active and raising capital to purchase the network. In the spring, the BT Advisory Board recommended that a permanent owner should have ties to the local community

For the time being, the city is leasing the network, which is under temporary ownership of Blue Water LLC, a company that purchased the network as part of a deal hatched with CitiBank. The financial giant had sued the city for $33 million after cover-ups from a past mayoral administration cast the network into financial chaos. That agreement requires the city to find a permanent owner for the network and finalize the sale by January 2019. If the city does not find a permanent buyer of their liking, Blue Water can choose the next owner; locals fear it may be a company like Comcast.

The new Wi-Fi will give commuters a chance to taste the high-quality Internet access that Burlington residents and businesses are trying to keep under local control. The network's ownership is uncertain, but the local initiative is doing all it can to keep it from becoming just another big, faceless, unresponsive ISP.

Mediacom Lawyers Slow Competition With Court Time, Resources

 

When big corporate incumbent providers fear a hint of competition from a new entrant, they pull out all the stops to quash any potential threat. One of the first lines of offense involves the courts. Iowa City now leases its fiber to Cedar Rapids based ImOn and to stop it, Mediacom is reprocessing an old argument. It didn't work the first time, but they are going for it anyway; this is another example of how cable companies try to hobble competitors; just stalling can be a "win."

A Lawsuit In Search Of An Offense

Mediacom has a franchise agreement with Iowa City to offer cable television services and it also provides subscribers the option to purchase Internet access and telephone services. As most of our readers are attuned to these matters, you probably already understand that just any old cable TV provider can’t come into Iowa City and set up shop. State and local law require them to obtain a franchise agreement, which often includes additional obligations in exchange for access to a community’s potential customer base.

According to a 2015 Gazette article, Mediacom provides annual payments for use of the public right-of-way, operates a local office, and provides free basic cable services to local schools and government buildings. These types of commitments are commonplace as part of franchise agreements and are small sacrifices compared to the potential revenue available to Mediacom.

ImOn started offering Internet access and phone services to Iowa City downtown businesses in January but the company does not offer cable TV services like it does in other Iowa municipalities. ImOn doesn't have a franchise agreement with Iowa City but Mediacom says that it should. They argue that, because ImOn has built a system capable of offering video service, it should also have to obtain a franchise agreement.

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In August, U.S. District Court Judge Charles R. Wolle dismissed the case, stating in a nutshell:

"Although ImOn is constructing in Iowa City a system that may become capable of delivering cable programming, ImOn is not now delivering cable programming. Therefore, ImOn is not presently required to seek a cable franchise.” 

Blast From The Past

This isn’t the first time this argument has echoed off the walls of a courtroom. Back in 2005, the U.S. Court of Appeals for the Eighth Circuit dismissed a similar case between Time Warner Cable (TWC) and the city of North Kansas City. The situation was similar, except the city had not yet decided whether to invest in the required head end to provide video over the fiber-optic network they wanted to deploy. At the time, a Missouri law required a vote if the community planned to build and own a system in order to offer cable TV services. TWC wanted the use the court for a pre-emptive strike: to bar the city from using the network for video services stating that they could not do so because they had never held a vote.

TWC's argument revolved around the question of whether or not the city owned or operated a cable television facility, which was in violation of state law. Since the network was not offering cable services and there was no head end yet - in fact they didn't even know if they wanted to invest in one - what really mattered was whether or not North Kansas City owned a "cable TV facility" without prior voter approval. In other words, were they building a network that was capable of offering cable TV services?

As in Iowa City, the court determined that the issue was not “ripe.” From the opinion:

It is factually undisputed that the City's fiber-optic network is not connected to the required head end facility to receive such signals nor is there any plan to acquire it. Thus, Time Warner's statutory claim rests on a contingent future event:  the ownership or operation of a cable-television facility by the City;  therefore, Time Warner's claim that a vote is required under Missouri law is not ripe in that the City does not currently own or operate a cable-television facility because the planned fiber-optic network will not be capable of transmitting cable-television signals and because the City recognizes that in order for it to provide cable-television services a public vote would be required.

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Let's not put the cart before the horse.

Jeff Janssen, vice president of sales and marketing for ImOn said in December that if the provider’s plans change, they will take the necessary steps:

“Franchise agreements are all around cable TV,” he said. “Once we decide, or if we decided to offer cable TV in Iowa City, we would get that franchise agreement, we are required to.”

Every Tool In The Anti-Competitive Toolbox

Mediacom has approximately 4,500 employees and, like the other large corporate providers, they have a highly qualified regiment of attorneys. Not likely they missed the similarities between the North Kansas City and Iowa City cases, but there’s more than one way to win.

Traditionally, winning means presenting the facts and proving to the judge that they fit into the law and that your interpretation of how they work with the law is more correct than your opponent's. For companies like Mediacom and TWC, however, winning can also mean delaying your opponents project to drive up their costs or cool subscriber interest. In other words, going after the fruit before it is "ripe."

Winning may also mean forcing the other side to give up and walk away by driving up their legal costs or making them lose progress when construction is delayed and subscribers lose confidence in the project.

Big incumbents have become masters at using the courts for sabotage schemes, no matter how frivolous the perceived infringement. They sue or threaten to sue over poles, attempts to streamline, and what services a city can and cannot offer. The state legislatures that have passed laws restricting local authority have only helped massive telecoms and cable companies abuse the courts by providing vehicles for their lawsuits. At the same time, they have forced local governments to waste citizen funds and stalled Internet access, typically to the communities most desperate for it.

You can read the Order for Summary Judgement, the Order Amending the Order (which appears to correct a typographical error), and the Notice of Appeal for more.

AT&T Makes Good On Threats, Sues In Nashville

AT&T lawyers filed suit against Nashville just two days after Mayor Megan Barry signed the new One Touch Make Ready (OTMR) ordinance into law. The Metro Council passed the proposal for the final time, and sent it on to the Mayor, on September 20th.

Seeking Out Streamlining

OTMR was proposed by Google Fiber, which wants to enter the Nashville market by deploying an aerial fiber network. In order to do that, they need to attach fiber-optic cables to utility poles around town, but the current process is cumbersome and will significantly delay the rollout. OTMR streamlines the procedure but would allow some one other than AT&T to manage the rearrangement of wires on all poles in the Nashville rights-of-way. The telecom giant owns about 20 percent of the poles in Nashville; the city’s electric utility, NES, owns the rest.

Three Arguments

AT&T seeks a permanent injunction to stop the city from enforcing the new ordinance. They argue the city does not have the authority to enforce the ordinance - that role is within federal jurisdiction through the FCC.

They go on to state that the Metro Council does not have the authority to pass the ordinance because, according to the city charter, only the Electric Power Board the has the right to pass regulations that deal with issues related to equipment, such as poles and the cable on them. 

AT&T also asks that the court grant a permanent injunction on the basis that they already have a contract with the city relating to AT&T’s wires that are on NES poles. The contract allows the company to handle its own wires and enforcing the ordinance would basically nullify that component of the contract.

What This Is Really About

AT&T filed a similar suit in Louisville earlier this year when the Metro Council there passed OTMR; that suit is still ongoing. Google Fiber wants to serve both communities and, in typical AT&T fashion, the telecom giant is attempting to use the courts to put a block on them. Even before the final Metro Council vote, AT&T threatened to sue if the measure passed. “The short answer is the One Touch Make Ready proposal Google has offered is a proposal that we expect would result in litigation,” said Joelle Phillips, President of AT&T Tennessee. Mayor Barry had asked that the ISPs and NES all work together to come up with an agreement but AT&T was determined to slow Google Fiber’s deployment, hindering its success.

Lawyers On Loan

Google Fiber has offered assistance to Nashville in the form of its legal team. Before the final vote, Google’s parent company Alphabet had already committed to helping out:

“Google Fiber is disappointed that AT&T has threatened to go to court in an effort to block Nashville’s efforts to increase broadband competition should the OTMR ordinance pass,” Fleur Knowlsey, senior counsel of Alphabet’s Access group, which manages Google Fiber, wrote in an email to the council on Monday.

“We believe the city's commonsense initiative will be upheld in the face of any litigation. We know, however, that litigation can be challenging and expensive. In the event of OTMR litigation, Google Fiber will therefore be glad to share the capabilities of its in-house and outside attorneys, including some of the most experienced and accomplished regulatory attorneys in the industry.”

Read the complaint here.

North Carolina and Tennessee Lose in 6th Circuit - Community Broadband Bits Podcast 217

It has been several weeks, but Lisa and I wanted to answer any lingering questions people may have about the results of the Sixth Circuit case reviewing the FCC's action to remove state-created barriers to municipal networks. We devoted Community Broadband Bits episode 217 to the case and aftermath.

The Sixth Circuit ruled against the FCC narrowly - finding that while it had no dispute with the FCC's characterization of municipal networks as beneficial, Congress had not given the FCC the power to overrule state management of its subdivisions (cities). As we have often said, restricting local authority in this manner may be stupid, but states are allowed to do stupid things (especially when powerful companies like AT&T and Comcast urge them to).

Lisa and I explore the decision and explain why we are nonetheless glad that FCC Chairman Tom Wheeler and Commissioners Rosenworcel and Clyburn moved on the petitions from Chattanooga and Wilson to remove state barriers to next-generation network investment. We also reference this blog post from Harold Feld, which is a well-done summary of the situation.

Read the transcript of this episode here.

We want your feedback and suggestions for the show-please e-mail us or leave a comment below.

This show is 20 minutes long and can be played below on this page or via iTunes or via the tool of your choice using this feed.

You can download this mp3 file directly from here. Listen to other episodes here or view all episodes in our index.

Thanks to Roller Genoa for the music, licensed using Creative Commons. The song is "Safe and Warm in Hunter's Arms."

AT&T Tries to End the Magic of One Touch Make-Ready

On the border of Kentucky and Indiana a fight is brewing as AT&T and Google Fiber have both announced plans to bring Gigabit Internet service to Louisville, Kentucky. Home to over half a million, the city could see major economic development with new ultra high-speed Internet access, but there’s a problem: the utility poles.

AT&T is suing the city over a “one touch make-ready” ordinance. On February 11, 2016, the Louisville Metro Council passed the ordinance in order to facilitate new competitors, i.e. Google Fiber. 

Utility Poles: Key to Aerial Deployment

Make-ready is the shorthand for making a utility pole ready for new attachments. Although it may seem simple, this process is often expensive and time-consuming. To add a new cable, others may have to be shifted in order to meet safety and industry standards. Under the common procedure, this process can take months as each party has to send out an independent crew to move each section of cabling. 

To those of us unfamiliar with the standards of pole attachment it may seem absurd, but this originally made sense. Utility poles have a limited amount of space, and strict codes regulate the placement of each type of cable on the pole. Competitors feel they have to fiercely guard their space on the pole and cannot trust other providers to respect their cables. Make-ready must involve coordination between multiple providers and the utility pole owners. For some firms, like AT&T, this is an opportunity to delay new competition for months.

“One touch make-ready” simplifies the entire process. A single crew only makes one trip to relocate all the cables as necessary to make the utility pole. Under the amended ordinance in Louisville, the company that wants to add a cable to the utility pole can hire a single accredited and certified crew, approved by the pole owner, which will accomplish the work much more quickly and at lower cost. Also, it must pay for needed fixes or any damages to the pole-owner’s equipment and inform the pole-owner of any changes within 30 days. Such “one touch make-ready” policies quicken network deployments by preventing delays inherent in coordinating many different entities.

Why Oppose It? Private Utility Pole vs. Public Right-of-Way

AT&T is suing to stop Louisville from implementing this new policy in an effort to stop the new competition from entering the market. Ostensibly, AT&T argues they filed the suit because they own many of the utility poles (an estimated 25-40%) in Louisville. The company argues that the municipality does not have the authority to regulate the utility poles and that this is an unjust seizure of property. In other communities where this is the case, the new companies that want to use the utility poles must sign a licensing agreement with AT&T. 

AT&T’s argument, however, fails to recognize that local governments are required to manage the public Rights-of-Way (in layman’s terms, that is the land kept for the public interest near a roadway). The utility poles, although privately owned, serve a key function for connecting the public with needed services. That is why those utility poles are permitted on the public Right-Of-Way in the first place. Local governments, moreover, must have the authority to ensure that anything permitted on the public Right-Of-Way, such as utility poles, meet safety and industry standards in the quickest and most efficient way possible. 

Further Resources on “One Touch Make-Ready”

Chris interviews Ted Smith, Chief Innovation Officer for Louisville in Community Broadband Bits Episode 193. Smith describes how “one touch make-ready” is quicker, safer, and more efficient to use the utility poles in the public Rights-of-Way to their full potential for the good of the community.

For more information on the importance of “one touch make-ready,” check out analyses from the Coalition for Local Internet Choice, Next Century Cities, and FTTH Council. For an in-depth analysis of Right-of-Way regulations, listen to Sean Stokes of Baller, Herbst, Stokes & Lide on Community Broadband Bits Podcast Episode 169.

Listen to the Lawyers: Audio of Oral Arguments Now Available in TN/NC vs FCC

Attorneys argued before the Sixth Circuit Court of Appeals on March 17th in the case of Tennessee and North Carolina vs the FCC. The attorneys presented their arguments before the court as it considered the FCC's decision to peel back state barriers that prevent local authority to expand munis.

A little over a year ago, the FCC struck down state barriers in Tennessee and North Carolina limiting expansion of publicly own networks. Soon after, both states filed appeals and the cases were combined.

You can listen to the entire oral argument below - a little less than 43 minutes - which includes presentations from both sides and vigorous questions from the Judges.

To review other resources from the case, be sure to check out the other resources, available here, including party and amicus briefs.

No Love Lost Between North Carolina A.G. And State Barrier

The State of North Carolina is currently awaiting a decision from the U.S. Sixth Circuit Court of Appeals as the court considers the FCC's February decision to roll back state barriers. North Carolina Attorney General Roy Cooper's office is heading up the state's appeal, but is his heart in it?

Cooper is running for governor and, in a recent interview, expressed his views about H129, the focus of the appeal in North Carolina [emphasis ours]:

The Legislature has passed a lot of bad laws, but it is the job of the attorney general to defend state laws...And I wish the governor and the General Assembly would stop passing so many bad laws that create litigation. We’ve seen that in many instances. This is another situation where the attorney general’s office is duty bound to defend state law.

"Bad law" accurately describes H129, which is the reason why the FCC rolled it back in February. Perhaps Cooper's candid comment suggests that, if he one day becomes Governor, he will work with his colleagues in the state legislature to repeal it.

Rather than having to contend with this type of "bad law," local communities need the authority to make their own telecommunications decisions. After all, local folks are the ones that live with the results.

Small City Fights Comcast Over Institutional Network

Reports have recently surfaced from The Detroit News and Patch.com that a town in Michigan is now fighting Comcast over who owns their network.

The Backstory

Fifteen years ago, West Bloomfield, Michigan, population about 65,000, wanted an Institutional Network (I-Net) to connect all the important services, like emergency response, police, fire, and water, with a dedicated high-speed network. The town entered into a franchise agreement in order to share the construction costs with the incumbent cable company, which at the time was MediaOne. According to the township, MediaOne offered to contribute $400,000 to the cost of construction as part of that agreement.

The agreement was transferred to Comcast in 2000; Comcast acquired MediaOne in 2002. MediaOne and successor Comcast have provided "free high-speed bandwidth transport as well as interconnectivity" during the life of the network claims Comcast in a letter submitted to the court. The cable giant also describes the practice as a "benefit not provided by Comcast's competitors" and wants it to stop. The franchise agreement expired on October 1 but was renewed until 2025.

To The Courts

Comcast and the town are now fighting over ownership of the infrastructure. With Comcast demanding new fees, the town is bringing a lawsuit. Comcast, however, maintains that it owns the I-Net that the town uses for all its important communications. The Detroit News reports that the township is coming out swinging:

The township said it is illegal to use public funds for private commercial purposes and insists there was never any reference to a cable company ever retaining ownership of the I-Net and said it has paid all other costs including upgrades and maintenance of the system which is “imperative to public safety operations of the township and will impact the township’s budget which is currently being prepared for 2016.”

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The township not only seeks a preliminary and permanent injunction against Comcast, it wants the company’s act declared a “wrongful conversion of township property” and to be awarded three times the actual damages plus costs and attorney fees.

In the past, these agreements made sense to small towns that needed economical internal communications. All across the U.S., towns signed onto franchise agreements with large providers that offered to build I-Nets and supply connectivity.

As original franchise agreements expire, ownership issues and rate changes are popping up. After years of dependency on big corporate providers in an environment where there is little or no competition, communities like West Bloomfield often find themselves at the mercy of companies like Comcast.

What Can Cities Do? Take Control

There’s another way though. Many towns have built their own I-Nets - often with better connectivity and more savings than franchise agreements offer. The infrastructure can be expanded for other public policy programs too, like economic development or residential Internet access. The “Institutional Networks” page is full of stories about communities that have built their own I-Nets. Rather than trusting big corporate providers, towns control their own infrastructure and are better able to predict connectivity costs.

Franchise agreements are expiring across the country. Big corporate providers like Comcast and Time Warner Cable use this strategy to squeeze more dollars from institutional customers. Martin County, Florida, overcame a similar situation when Time Warner Cable tried to extract exorbitant fees as their franchise agreement expired. Rather than pay an increased rate of more than 800 percent, they chose to invest in a publicly owned fiber I-Net. The community is now able to control their costs with fast, affordable, reliable infrastructure that the community can expand. Read more about Martin County in our 2012 Report, Florida Fiber: Martin County Saves Big with Gigabit Network.

Other towns can expect to find themselves in the same situation as West Bloomfield, Michigan. Raising rates and demanding new fees, large providers put profit before the best interests of the community. With these franchise agreements expiring, there’s a chance for cities and towns to take back local control by building their own networks.

The time to act is now. To learn more about what to do at the local level, check out our Community Connectivity Toolkit.

Bozeman City Commission Votes to Create Nonprofit Bozeman Fiber

When we last checked in on Bozeman, the City Commission had approved a Technology Master Plan. In order to implement that plan, the same body voted unanimously on May 4th to create the nonprofit Bozeman Fiber to manage the network, reports the Bozeman Daily Chronicle.

The organization's board will consist of 7 members, including 1 from the city. Members from the public and private sectors will also be on the board, which will function independently from the City. The business community is especially excited about the project. From the article:

Several members of the public, many representing business groups like the Montana Photonics Industry Alliance and Bozeman Chamber of Commerce, urged commissioners to move forward with the project. No one voiced opposition.

“This is putting in critical infrastructure,” said Matt Johnson of First Interstate Bank. “It’s one of the best collaborative projects I’ve been a part of.”

Learn more about the project from our interview with several people working on the project in episode #142 of the Community Broadband Bits podcast.

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