Joey Garrison

jgarrison@tennessean.com

AT&T on Thursday sued Metro government over the new "One Touch Make Ready" ordinance aimed at helping Google Fiber expand its gigabit internet to Nashville, setting the stage for the next battlefront in the city's fight over broadband.

The widely expected lawsuit, filed in federal court, comes just one day after Mayor Megan Barry signed into law the much-debated change to the city's policy over utility poles after the Metro Council voted to approve the measure on Tuesday.

In the company's complaint, AT&T argues that under federal law the Federal Communications Commission, not local municipalities like Metro, have jurisdiction to regulate privately owned utility poles. In Nashville, 80 percent of the city's utility poles are owned by Nashville Electric Service, while AT&T owns the remaining 20 percent.

AT&T is seeking a declaratory and permanent injunction from the U.S. District Court for the Middle District of Tennessee to stop Metro from enforcing the new law.

But that's a key distinction from asking the judge for a preliminary injunction, which would have meant it had asked the court to intervene and halt the new ordinance immediately.

AT&T's case largely mirrors the legal argument that the company's attorneys have made against Louisville, Ky., which is in the midst of fighting litigation against AT&T after the city passed a similar One Touch Make Ready ordinance earlier this year.

Joelle Phillips, president of AT&T Tennessee, had made clear a lawsuit against Metro was likely if Nashville passed the ordinance.

“AT&T remains committed to Nashville, and our more than 2,200 area employees will continue to turn our significant investment in the area into the fiber-optic based, wired and wireless connectivity that Nashville residents and businesses demand," AT&T Tennessee spokesman Joe Burgan said in a statement.

"In addition, as we have maintained from day 1 of this discussion, Tennessee municipalities do not have jurisdiction to regulate pole attachments. And while we have worked with the mayor, members of council, NES, and others toward a better solution for Nashville, in light of the recent vote, we have no other option but to challenge this unlawful ordinance in federal court.”

More on Google Fiber debate

Nashville's new One Touch Make Ready policy went into effect upon the signature of Barry, who had avoided sides in the debate in hopes of finding a solution that would satisfy Google Fiber, AT&T and Comcast, which also opposed the ordinance.

“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," Barry said in a statement. "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.”

At issue with the ordinance is how utility poles are made ready for new providers. When a new line is added to a pole, each existing line under Metro's old policy had to be moved by its owner, a process that can take months per line.

With passage of One Touch Make Ready, Google Fiber sought to expedite the process by allowing one approved contractor to move all the lines at once, a policy change that would reduce traffic and sidewalk disruption, the company argued. Supporters have argued that the new ordinance would bring new competition to an internet industry dominated by only a few providers in Nashville.

In addition to AT&T's federal pre-emption argument regarding AT&T-owned poles, the lawsuit also alleges that the Metro Charter does not allow the council and mayor to regulate poles that are owned by NES. The suit says only the Electric Power Board has this authority.

Lastly, the lawsuit says that the new ordinance violates AT&T's existing contract with Metro, alleging that only AT&T, not the city or third parties contracted by Metro, is permitted to rearrange, transfer and remove lines on NES-owned poles.

Though Google Fiber is not a defendant in the lawsuit, the company has been bracing for a legal fight.

Before Tuesday's vote, Fleur Knowsley, senior counsel of Alphabet’s Access group, which manages Google Fiber, wrote a letter to Metro attorneys and the council promising to share its in-house attorneys to help Metro fight a lawsuit from AT&T.

Meanwhile, AT&T recently tapped high-profile Nashville attorney Bill Harbison to join its legal team. The company's lawsuit Thursday was filed by Harbison, of the Nashville law firm Sherrard Roe Voigt Harbison PLC, and attorney Christian Binnig, of the Chicago-based law firm Mayer Brown LLP.

Representatives of Google Fiber did not immediately respond to a request for comment on the suit.

During the Metro Council's final vote Tuesday, the threat of litigation was an overriding reason why 12 council members voted to support a delay on voting on the bill. The council's attorney, Mike Jameson, weeks ago flagged possible legal issues with the ordinance. Earlier this month, the council voted 19-18 to defeat a proposal to punt the One Touch Make Ready bill to the end of this year.

"Google’s not going to be a party to the litigation; Metro is," at-large Metro Councilman Bob Mendes warned his colleagues on the council floor earlier this month before his attempt to delay the measure failed. He had argued that Nashville should wait and see how the Louisville lawsuit pans out before moving ahead.

But other council members have said the city should not back down to a threat of litigation, arguing that lawsuits are precisely why the city has a legal department and that the future of broadband in Nashville outweighs any concerns.

Among that camp is Councilman Jeremy Elrod, one of the ordinance's leading sponsors. On news of the lawsuit Thursday, he said he expects a long legal fight but expressed satisfaction that the new One Touch Make Ready policy is not in jeopardy of being stopped by a court immediately.

He called the new ordinance "the best vehicle to foster internet competition," which he said his constituents have demanded.

He also took a shot at AT&T, quipping: "I wish their internet service were as fast as their lawyers."

Reach Joey Garrison at 615-259-8236 and on Twitter @joeygarrison.