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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.”

Highland Telephone Cooperative Gains Gigabit Recognition

The NTCA-Rural Broadband Association this month awarded the Highland Telephone Cooperative (HTC) of Sunbright, Tennessee, its national certification as a “Gig-capable” provider, reports the Independent-Herald.

HTC serves Scott and Morgan counties in Tennessee and McCreary County in Kentucky and is now one of 85 Gig-certified company/cooperative providers in the nation. The certification recognizes rural communities that are at the cutting-edge of broadband technology, offering Internet service of up to at least 1 Gigabit per second (1,000 Megabits per second or Mbps). The association launched this national campaign in the fall of 2015. 

Years of Planning

HTC completed its $66 million fiber-optic network within the last year; 1 Gig capacity Internet service is available to all 16,5000 members reports the Independent-Herald.  The six-year project upgrades the cooperative’s old copper network. Highland Telephone CEO Mark Patterson: 

"This gigabit certification caps off years of careful planning, investing and building a brand-new fiber network in our area...All along, we knew our commitment was worth the effort so our friends and families in this area could keep their rural lifestyle without sacrificing world-class connectivity."

The upgrade included more than 2,700 miles of fiber by the cooperative's crews and contractors — enough to stretch from Highland's office in Sunbright to Vancouver in British Columbia, the Independent-Herald reported.

"Our area lacks interstates and many economic advantages that other communities enjoy, and we've suffered through some extremely high unemployment in recent years," Patterson said. "An asset like a gigabit-capable network can be our competitive edge when it comes to bringing in industry and growing existing businesses."

85 Gig Networks

To date, the NTCA-Rural Broadband Association has recognized 85 companies and cooperatives from 26 states as Gig-capable. The list includes 26 recipients in Iowa and six from Minnesota. Among the Minnesota honorees is Paul Bunyan Communications headquartered in Bemidji.  

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Across the nation, more and more telecom cooperatives are helping bring high-speed connectivity to rural America. They are filling the void created by large Internet Service Providers (ISPs) who generally consider it financially unattractive to make major broadband investments in sparsely populated areas.

The latest FCC annual broadband progress report estimates 34 million Americans, or about 10 percent of the nation’s populace, lacks access to 25 Mbps down/3 Mbps up service, the agency’s current definition of what constitutes basic broadband service. Those numbers likely understate the true situation, however, as they are based on form 477 data provided by ISPs and national providers often overstate their coverage based on census blocks. For more on Form 477 data, check out episode #224 of the Community Broadband Bits podcast. Christopher interviewed our Research Associate H.R. Trostle, who studied mountains of data for her report on connectivity in North Carolina.

Cooperatives Work!

In October, we noted that it was National Cooperative Month and highlighted a long list of cooperatives now providing next-century Internet connectivity. We expect that list to grow as rural communities recognize the value of cooperatives in bringing better connectivity to rural areas.

Rural Tennessee Economy: Digital Divide, Connectivity Chasm

Rural folks without fast, affordable, reliable Internet access face challenges with common tasks such as doing homework, completing college courses, or running a small business. Although Tennessee has an entrepreneurial spirit, a large swath of the state's rural residents and businesses don't have the connectivity they need to participate in the digital economy. A September article in the Tennessean looks deeper at the state's digital divide between urban and rural areas.

National Internet Service Providers (ISPs) have failed to make good on promises made over recent decades to bring high-quality Internet access to the entire country, both urban and rural. Several telephone cooperatives and the U.S. Department of Agriculture (USDA) are already actively investing in better Internet access to improve rural Tennessee’s economy.

The Tennessean Perspective

The newspaper the Tennessean laid out much of the connectivity problem in the "Volunteer State." Tennessee may have excellent Internet access statewide, but the urban and rural divide remains. According to a Tennessee Department of Economic & Community Development's report, only 2 percent of all urban residents do not have access to broadband. The FCC defines it as 25 Megabits per second (Mbps) download speed and 3 Mbps upload speed. That number climbs in rural areas, where one out of three residents does not have broadband access. 

Speed Is Not The Only Problem

Some folks simply have no Internet connection. For example, Deborah Bahr drove 30 minutes for Wi-Fi at Bojangles (Chicken and Biscuit) or visited a friend’s house a few miles away. Bahr used to run a coffee shop, leaving the Wi-Fi on continuously so local community college students could work on homework overnight in the parking lot. Bahr’s town borders Cocke County, an economically distressed area where almost 30 percent of residents are below the poverty level. 

A state law that prevents cities from expanding telecommunications services to neighboring rural areas hampers local communities’ efforts to bridge the rural-urban divide. The Tennessean article noted that the city of Clarksville has access to a Gigabit (1,000 Mbps), but in nearby Houston County, 99 percent of residents do not have broadband access. Clarksville has high-speed connectivity because the community has CDE Lightband, a municipal Fiber-to-the-Home (FTTH) network that offers a range of affordable Internet access speeds, including a Gigabit package.

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Tennessee Governor Bill Haslam, in speaking with the Tennessean, aptly summarized the dilemma that many face:

“Do we want private enterprise to compete with the government? I don’t think that’s government’s role. Our goal is to provide services people can’t get on their own. But that’s the sticky part. This is a service that people in some places in the state can’t get on their own.”

USDA #RuralMade, More Than Ag

Those rural areas with high-speed connectivity in Tennessee often have their local telephone cooperative to thank. Formed by farmers years ago with support from the federal government, these cooperatives brought the first telephone lines out to rural Tennessee. Although fiber networks in rural areas have a high-cost, many of Tennessee’s rural telephone cooperatives have built them. 

A few, such as Highland Telephone Cooperative and Twin Lakes Telephone Cooperative, relied on support from the USDA to build high-speed FTTH networks. In Tennessee alone the USDA has already invested $236 million for telecommunication projects. For more information on USDA’s multi-million dollar investments in Tennessee, check out the USDA #RuralMade Tennessee Fact Sheet.

These projects are recognized as supporting all aspects of the rural economy from manufacturing to healthcare. According to the Tennessee Department of Economic & Community Development's report, 24 percent of Tennessee’s households run a business from home with 14 percent operating a business exclusively from their home. That same study found that 43 percent of all new jobs are enabled by broadband.

The rural economy needs high-speed connectivity to move forward. In the Tennessean article, Bahr perfectly encapsulated this:

"I want people around here ... to see themselves as entrepreneurs and real stakeholders," she said. "It could help them start their own businesses."

Google Fiber Pauses - But No One Else Should

Google Fiber has finally announced its plans for the future after weeks of dramatic speculation that it will lay off half its workforce and give up on fiber-optics entirely. Google has now confirmed our expectations: they are pausing new Google Fiber cities, continuing to expand within those where they have a presence, and focusing on approaches that will offer a better return on investment in the short term.

Nothing Worth Doing Is Easy

In short, Google has found it more difficult than they anticipated to deploy rapidly and at low cost. And in discussions with various people, we think it can be summed up in this way: building fiber-optic networks is challenging and incumbents have an arsenal of dirty tricks to make it even more so, especially by slowing down access to poles.

That said, Google is not abandoning its efforts to drive better Internet access across the country. In the short term, people living in modern apartment buildings and condos will be the greatest beneficiary as Google takes the Webpass model and expands it to more cities. But those that hoped (or feared) Google would rapidly build Fiber-to-the-Home (FTTH) across the country are likely disappointed (or slightly relieved, if they happen to be big incumbent providers). 

This is a good moment to talk about the lessons learned from Google Fiber and what we think communities should be thinking about. 

Let's start by noting something we have often said: Google Fiber and its larger "access" approach have been incredibly beneficial for everyone except the big monopolists. Its investments led to far more media coverage of Internet access issues and made local leaders better understand what would be possible after we dismantle the cable broadband monopoly. 

Benoit Felton, a sharp international telecommunications analyst wrote a very good summary of Google Fiber titled Salvaging Google Fiber's Achievements. Some of my thoughts below overlap his - but his piece touches on matters I won’t address, so please check out his analysis.

I want to focus on a few key points.

This is Not a Surprise

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Google is a private firm that has a fiduciary responsibility to maximize returns for its shareholders. More to the point, so is Alphabet, which houses Google Fiber. Google's interest in fiber was not solely pulling revenue out of the network in the same way that Comcast, AT&T, and others do. They wanted to maximize good Internet access to get more people to use the Internet more and thereby increase the value of their ad business. That is why they have been more consumer-friendly in many ways than the big cable and telephone companies. Google believes it wins even when it simply forces other providers to upgrade their networks.

The fact that they are now focused on doing that in a different way or changing the way they are driving network upgrades should not be surprising. Fiber-optic investments in single-family home neighborhoods can take many years to break even whereas using a hybrid fixed wireless and fiber strategy to target the tens of millions of people living in apartments and condos is likely to break even much quicker. 

That said, if One Touch Make-Ready policies succeed in Louisville and Nashville, I think we will see more Google Fiber investment in FTTH.

But Google is fundamentally a private firm focused on its shareholder value. And as such, it does not have the right incentives to deploy what has become essential infrastructure. Many of us have objected to the market-driven approach that tends to leave low-income areas behind. Nevertheless, Verizon and AT&T have left far more neighborhoods behind than Google. We believe universal access will be more difficult after market-driven approaches skim the cream out of our cities, leaving public funds to ensure everyone has access.

Fiber Remains A Good Municipal Investment

There is no wireless technology today that will cost-effectively deliver a high capacity connection to single-family homes that gives a deployer a technological advantage over modern cable systems (yes, we need better networks than cable networks offer). Google is not abandoning fiber in favor of wireless. It is changing its focus from near-citywide deployments to buildings with many tenants, where it can use both fiber and fixed wireless approaches to deliver service quickly. 

If anything, Google Fiber's change in focus reinforces the importance of smart municipal investments. That can mean a range of things, from Chattanooga or Lafayette approaches to Lincoln's conduit model to Ammon's software-defined network open access approach.

This is especially true in light of 5G wireless, which is still far on the horizon and will require fiber deep into neighborhoods - more fiber than the wireless carriers can easily deploy. Cities that make it easy for the wireless carriers to deploy small cells and connect it with affordable fiber will get these technologies faster and better than those that just wait for the private sector to do everything. Stay tuned to Broadband Bits for an upcoming podcast on how Lincoln has a brilliant model for that.

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Waiting Can Only Hurt You

Whether a community intends to offer services directly or simply to encourage more independent service providers, it is now clear that they need to take action. The "Google Lottery" is temporarily suspended. Get busy finding an approach that fits your needs and challenges.

This is especially true for cities that have real potential to meet their needs with smart local investments but have been waiting and waiting at the altar for Google - ahem, Palo Alto, Portland, and others. Stop dawdling and get serious. You have the capacity to do something. Get started.

Google may resume new FTTH build outs, and when it does - it will undoubtedly look more favorably on communities that have dark fiber, conduit, and other assets ready for them. And if Google remains paused much longer, then you will have created assets to use for your own deployment or for attracting a different partner. 

Speaking of a different partner, Elliot Noss of Ting reminded me that Google can play around with autonomous cars and artificial intelligence in a big way today. Since they launched fiber, the opportunity cost of using their capital has changed significantly. Compared to the potential returns for deploying fiber to single family homes, A.I., and the potential to control all future vehicular movement seems more lucrative.

Once again paraphrasing Elliot, one of the core talents of an ISP should be dealing with people - from installers to customer service. This is not a core area for Google. Google's engineers have done a stunning job creating their technologies - especially the DVR system. But being a competitive ISP is not just technology - it is interacting with your subscribers.

While Google may be in a pause, Ting is excited to keep moving on. Travis Carter of US Internet in Minneapolis can't wait to lay more fiber next year (winter is about to slow his deployment up here); they see nothing but potential in coming years.

Wireless Is Not Killing Fiber

I want to be especially clear. Companies like AT&T and Verizon love stories about how fiber is too expensive or uneconomic. They have a customer base to protect from competition. They are thrilled when they can scare potential investors in fiber networks.

5G is not magic and won't meet all of our needs. When I started working in this industry 10 years ago, I was told that Wi-Fi obviated the need for fiber. WRONG. But then, I was told that fiber wasn't necessary because WiMax would meet all our needs. WRONG. And then it didn't take long before fiber was supposedly unnecessary because 4G LTE was going to do everything except solve world hunger. WRONG. 4G remains a complement to fiber, not a substitute.

When I talk to people that have only 4G and not a wired service in their homes, they usually complain - whether it is the cost, reliability, or some other factor. And when you look closer at 5G, it is clear that FTTH continues to be a smart investment. And when building a FTTH network, you have an opportunity to lease fiber to those deploying 5G, another revenue source.

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Google is not scared of the possibility of 5G making fiber uneconomic. Google is frustrated at the pace of deployment because both pole owners and the networks already attached to utility poles can dramatically slow critical access to those poles by using every day of their allotted time to make a pole ready for a new attacher. 

This is not about city permitting - we have once again seen that even when cities bend over backwards to ease deployment access, it is the incumbent providers that continue to be the biggest barriers to new investment (this reinforces a CTC report that communities could reduce outside plant costs by 8 percent at most). There is just no way getting around the mismatch between private sector business models and the need for critical infrastructure. It is capital-intensive and offers a slow return, especially when done correctly.

The Private Sector Needs You

The private sector, Google included, simply cannot solve this problem alone but cities can change the calculus. Phil Dampier agrees. Blair Levin has been making this case for years - see the Next Generation Network Connectivity Handbook [pdf], for instance. But take care with those that are too focused on private investment. Cities need to be very careful in partnerships and should not rely too much on the private sector - our report offers suggestions for how to get the right balance.

Google is taking a pause, but it should be a kick in the pants for the rest of us. Time to get busy building the infrastructure of tomorrow - because some cities already have it today and we don't want to let them have all the fun.

Duck River Co-op Considering Rural Fiber Future

Duck River Electric Membership Corporation (DREMC) in Tennessee announced in September that it has launched a feasibility study to investigate ways to use a proposed fiber-optic network to bring better connectivity to members.

Exploring Added Value

According to the announcement, DREMC is considering investing in a fiber-optic loop to improve communications between its offices and substations. DREMC recognizes that this initial investment can be a first prudent step in considering the future of the cooperative and the vitality of rural Tennessee:

A fiber-optic loop has been proposed to connect all offices and substations, including the co-op’s emergency operations center. This project could also provide capacity for community purposes: fiber that could be leased to other parties, even Internet-to-home providers.

The broadband feasibility study will explore how the proposed fiber-optic loop might help improve connectivity in rural areas served by DREMC.

Within The Confines Of The Law

In Tennessee, electric cooperatives are prohibited from providing Internet access to residents, but DREMC still wants to use its publicly owned infrastructure for the benefit of members.

DREMC serves the areas south of Nashville. Columbia and Tullahoma are some of the more densely populated areas and have their own electric utilities, which also provide Gigabit connectivity. Rural areas outside of the cities rely on cooperatives like DREMC for electricity; the state restrictions will keep those communities in that last century for Internet access because national providers have no desire to serve them. 

From the announcement:

“This is a first but very important step,” says DREMC President and CEO Michael Watson.

“Today, so much depends on connectivity. Economic development, job creation and retention, healthcare, education, and public service are all enhanced by access to broadband Internet. But many rural households and communities do not have the connectivity they need.”

Watson describes the situation as very similar to the mid-1930s when electric cooperatives were created to bring central station power to rural America.

“Co-ops found ways to build power distribution systems at lower cost, using a non-profit business model based on member ownership, local control, innovation and dedication to community. We believe the same cooperative principles might be applied today to solve the broadband connectivity problem in southern Middle Tennessee,” he says.

Action In The State Capitol?

There is a faction of Tennessee legislators pursuing changes in state laws to improve local connectivity. Those changes focus on municipal network restrictions, but laws for cooperatives could be close behind. By investing in the infrastructure, DREMC is cleverly positioned to either lease to private Internet Service Providers (ISPs) or offer services directly if the law changes in the future.

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.

Cool & Connected in "Little Gig City"

Few communities in Tennessee have next-generation, high-speed connectivity, but the city of Erwin built its own network despite Tennessee’s restrictions. Now through a collaboration of federal and regional agencies, this “Little Gig City” will get assistance showing off their fiber network.

The planning assistance program, called Cool & Connected, will provide direct assistance to Erwin to develop a marketing plan for the fiber network. Cool & Connected looks to promote the Appalachian communities by using connectivity to revitalize small-town neighborhoods and encourage vibrant main streets with economic development.

Federal and Regional Collaboration

U.S. Environmental Protection Agency Administrator Gina McCarthy explained the program in The Chattanoogan

“Cool & Connected will help create vibrant, thriving places to live, work, and play. We’re excited to be working with these local leaders and use broadband service as a creative strategy to improve the environment and public health in Appalachian communities.”  

Three governmental agencies have brought together the Cool & Connected program to provide planning assistance to ten chosen communities in six states near the Appalachian Mountains. Agencies partnering on the initiative are the U.S. Environmental Protection Agency’s Office of Sustainable Communities, the U.S. Department of Agriculture’s Rural Utilities Services, and the Appalachian Regional Commission through the Partnership for Opportunity and Workforce and Economic Revitalization (POWER) initiative.

The “Little Gig City” That Could

Although Erwin is a small community of 6,000 people, it expertly navigated Tennessee’s restrictive municipal networks law. The city built the network incrementally starting in 2014. By leasing out Erwin's excess electrical capacity, officials have been able to build each section without taking on any new debt. The network started serving customers in early 2015.

The scenic community is right on the eastern edge of the state, nestled into the Appalachian Mountains. It may not be the first place that comes to mind for high-speed connectivity, but the Cool & Connected program will encourage young professionals, investors, and visitors to recognize the potential of the "Little Gig City." 

Nashville: One Touch Make Ready Moves Forward

On September 6th, the Nashville Metro Council approved a proposed One Touch Make Ready (OTMR) ordinance by a wide margin of 32-7 on a roll call vote (computers were down). This was the second vote to advance the ordinance, designed to streamline deployment of fiber-optic networks in a city looking for better connectivity. Elected officials responded to Nashville residents who flooded their council members’ offices with emails.

The Nashville Metro Council will take up the ordinance one last time; passage could speed up competition in the country music capital. Google Fiber has been pushing for a OTMR, while incumbents AT&T and Comcast look for a non-legislative solution to the problem of the poles while protecting their positions as dominant Internet Service Players (ISPs).

Caught Between A Rock And A Hard Stick

The city of Nashville sits on limestone, a rock that cannot support the trenching and underground work of fiber deployment. The only other option is to use the utility poles. Eighty percent of the poles are owned by the public utility Nashville Electric Service (NES), but incumbent provider AT&T owns the other 20 percent. Google Fiber says it needs to attach fiber to 88,000 poles in Nashville to build its network and about half of those (44,000) need to be prepared to host their wires. 

Pole attachments are highly regulated, but there are still gray areas. Susan Crawford provides an overview of the policies and regulations on BackChannel; she accurately describes how poles can be weapons that guard monopoly position. Currently, each company that has equipment on the poles must send out a separate crew to move only their own equipment. This process can drag on for months. The OTMR ordinance is a deceptively simple solution to this delay. 

Deceptively Simple, But Regulated

At its simplest, OTMR means that one crew moves everything; the ordinance under debate in Nashville is actually more complicated than that. (Read the Nashville OTMR ordinance here.)

If Company A wants to add equipment to the poles, it still has to go through an attachment application process. Once approved, the owner of the pole (let's call them, PoleCo) can then require Company A to use specific contractors. 

If Company A rearranges or alters equipment that belongs to PoleCo or some other company that may have equipment on the pole, then they have to notify the owner of the equipment within 30 days. The company whose equipment has been altered, has another 30 days to conduct a field inspection with PoleCo.  

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If the pole requires complex work, then every company already on the pole gets 30 days notice to move their equipment. If those companies do not comply after 30 days, then Company A can perform the complex make-ready work. If there are any errors or problems from Company A's make-ready work, the companies already on the pole can recoup expenses. 

NES explained the basics of the current process and the idea behind OTMR in their newsletter. The public utility did not take a positive or negative position on the ordinance, choosing instead to focus on the final result:

"NES is dedicated and cooperative towards finding a resolution that will accommodate the efficient and effective deployment of broadband services that promote customer choice and competition and improve the lives of the citizens of Nashville."

The Incumbent Providers: Comcast and AT&T

Nashville Mayor Megan Barry has remained neutral on the policy, but has encouraged NES and the tech giants to reach a mutually beneficial solution for the good of the community. If the councilmembers approve the ordinance a final time, it will go to her desk for a signature.

AT&T may be preparing for a lawsuit against Nashville if this is the case. They already have an ongoing legal fight in Louisville, Kentucky, over OTMR. AT&T argues that the ordinance change would conflict with their contracts with NES and the union. The Nashville Metro Council Attorney Mike Jameson analyzed the ordinance for the Council and determined that Nashville clearly has the power to regulate the NES’s utility poles, but perhaps not the privately owned utility poles. 

Comcast, meanwhile, has claimed that the NES’s attachment application process is a source of delay (i.e. that Google Fiber is blaming the wrong process). Comcast is experiencing 90-100 days of processing for their applications to NES. The contractual obligation between Comcast and NES is 45 days to process applications, but Comcast has also “exponentially” exceeded the number of poles that they can apply for in a month under that contract, according to NES official Nick Thompson in the Tennessean.

Meanwhile, Councilmember Anthony Davis, a cosponsor of the OTMR ordinance also told The Tennessean that Google Fiber is not experiencing the permitting delays because it has already worked out a contract with NES. 

The Final Vote

In two weeks, the bill returns for a final vote on September 20, 2016. Councilmember Jeremy Elrod, one of the bill’s cosponsors, described the last vote on September 6, 2016 in The Tennessean:

"This is an extremely big step forward, an extremely big net positive for Nashville, for internet competition. … It increases competition, increases telecom and Internet investment for [us] as a city and our citizens as a whole."

Photo of utility workers courtesy of FEMA through a Creative Commons license.

Unanimous Dissent Radio On Munis, The FCC Decision, And State Barriers

Last week, Christopher was a guest on the Unanimous Dissent Radio Show. Sam Sacks and Sam Knight asked him to share information about the details on state barriers around the country.

The guys get into the nitty gritty on state level lobbying and anti-muni legislation. They also discuss how a growing number of communities are interested in the local accountability, better services, and improved quality of life that follows publicly owned Internet infrastructure.

The show is now posted on SoundCloud and available for review. Christopher’s interview starts around 17:00 and runs for about 15 minutes. Check it out:

 

Feld Breaks Down 6th Circuit FCC Reversal

In our last Community Broadband Bits podcast, Christopher and I discussed the August 10th U.S. Court of Appeals for the Sixth Circuit decision to reverse the FCC’s February 2015 ruling against state barriers. We mentioned Harold Feld’s article about the ruling posted on his website. In keeping with most matters of importance in the municipal Internet network field, Harold expertly sums up the history of the case, the arguments, and what the outcome could mean for the future.

Feld gets down into the crux of the argument that won over the three judges in the Sixth Circuit - the need to establish if it is states or federal agencies that make the decisions regarding whether or not local governments can provide telecommunications.

Determining the answer was a multi-step process and Feld explains how the FCC came to the conclusion that they had the authority to preempt the laws and the states' arguments against it. This was, after all, a test case and Feld describes why the FCC chose Chattanooga and Wilson.

Read more on Feld’s Tales of the Sausage Factory, where he speculates on how the big incumbent providers will react to their win and what is next for municipal network advocates. From Harold:

As with most things worth doing in policy land, it’s disheartening that it’s an uphill fight to get to rational policy. The idea that states should tell local people in local communities that they can’t invest in their own local infrastructure runs against traditional Republican ideas about small government and local control as it does against traditional Democratic ideas about the responsibility of government to provide basic services and promote competition. But that’s how things work in public policy sometimes. We can either give up and take what we get, or keep pushing until we change things for the better.