Judge rules against Metro Nashville, blocks Google Fiber-backed utility pole policy

A federal judge has ruled the Google Fiber-backed Metro Nashville ordinance meant to expedite above-ground internet installation is pre-empted by federal law in an order blocking the One Touch Make Ready policy on poles owned by AT&T.

Further, U.S. District Judge Victoria Roberts determined Metro "supplanted" Nashville Electric Service's authority managing its utility poles, which violates the Metro charter.

"The Ordinance conflicts with the exclusive authority granted to NES under the (Metro) Charter," Roberts wrote in the ruling. "This exclusive authority prevails over Metro Nashville's power to regulate public rights-of-way."

The ruling is a victory for AT&T and Comcast, which filed lawsuits last year against Metro Nashville, claiming the city did not have jurisdiction over utility poles and that the policy change violates contract law. Instead, the companies said the authority belongs to the Federal Communications Commission.

More: Google Fiber is expanding to these Nashville neighborhoods

More: AT&T won't appeal decision on Louisville's Google Fiber-backed utility pole policy, still pursuing Nashville lawsuit

Google Fiber says it is moving forward with its installation, relying on shallow digging installation techniques called "microtrenching." The company has launched service in several Nashville neighborhoods and in apartment and condo buildings.

“We're reviewing today's court ruling to understand its potential impact on our build in Nashville," a Google spokesperson said. "We have made significant progress with new innovative deployment techniques in some areas of the city, but access to poles remains an important issue where underground deployment is not a possibility.”

While the court said the ordinance encroached on NES' authority to regulate its poles, the judge did not rule on the portion of that complaint because NES was not named in the lawsuit. Comcast and AT&T have until Dec. 6 to add NES to the complaint.

AT&T owns about 20 percent of the poles in Davidson County, and NES owns the remaining 80 percent.

“We are reviewing the court’s decision and will make a determination regarding our next course of action in the near future," said Jon Cooper, Nashville Mayor Megan Barry's law director.

Google Fiber pushed for the One Touch Make Ready policy to speed up installation of its high-speed fiber network. The previous process called for each internet or telecom company to move lines before a new cable could be added, which could take months per line. One Touch Make Ready allowed approved contractors to move all cables in one session.

The contentious debate surrounding One Touch Make Ready came as the city's two largest internet providers, AT&T and Comcast, rolled out gigabit speed options for consumers and their new competitor Google Fiber began offering service.

Google Fiber officials indicated the company may not stay in Nashville if the policy failed to gain approval because the current process excessively prolonged new installation.

AT&T and Comcast objected to the policy, arguing it could affect worker safety and service quality for consumers. AT&T said the policy would harm its technicians and engineers by violating union contracts, but the Metro Council ultimately sided with Google and approved the ordinance in September 2016.

“We appreciate that the judge agrees with AT&T’s legal arguments that the ordinance is unlawful," Joelle Phillips, president of AT&T Tennessee, said. "However, the ruling does not change AT&T’s willingness to work with Nashville Metro and others to streamline and improve the way facilities are deployed across the Nashville area.”

Comcast also welcomed the judge's decision.

“We are pleased with the ruling and will continue to cooperate with new entrants, as we’ve always done, and support collaborative processes that safely accelerate broadband deployment in Nashville," Comcast spokeswoman Sara Jo Walker said.

NES did not clarify whether it would take a position in the lawsuit.

"NES remains committed to helping provide the most efficient and effective deployment of broadband," spokesman Holden Sheriff said. "Safety and reliability are NES’ primary interests in connection with pole attachments, and will continue to be our primary interests following this ruling."

The Nashville case was initially assigned to former U.S. District Judge Kevin Sharp in Nashville, but was transferred to Roberts, in the Eastern District of Michigan, when Sharp resigned in April.

Louisville lawsuit dismissed

In August a federal judge dismissed a similar suit filed by AT&T against the city of Louisville, determining the city has the right to control its public rights of way. AT&T had decided not to appeal the judge's decision.

Metro Councilman Bob Mendes said the two rulings do not conflict because Kentucky and Tennessee laws regarding utility pole regulation are different.

Mendes voted against One Touch Make Ready in 2016 and said he continues to urge each of the parties, along with NES and Metro Public Works, to come together to develop a compromise that is fair to each entity.

"There are legitimate concerns for the new providers, like Google Fiber, about how to get access on the incumbent providers' poles, and there are legitimate concerns by AT&T and Comcast," Mendes said. "Obviously, Metro wants to work through it all and get high-speed access to as many people as possible."

Google Fiber has not begun using the One Touch policy it fought for. Martha Ivester, Google Fiber's Nashville manager, recently said implementation was expected by year-end but that it had been slowed by litigation.

Metro Councilman Anthony Davis, an advocate for One Touch, said while the court ruling is a setback, internet competition has increased in Nashville.

"I want increased competition, more options and more neighborhoods getting faster speeds at lower costs," Davis said. "That's what we all want; it's just how to get there."

Reach Jamie McGee at 615-259-8071 and on Twitter @JamieMcGee_.