In depth on pole attachments, “one touch make ready” and what’s going on in Louisville

Last fall, the Fiber to the Home Council released guidance on streamlining make-ready policies for pole attachments to accelerate the deployment of high performance broadband networks. The Council proposed that communities adopt “one touch” policies which would allow a single construction crew — with sufficient skill and experience to be approved and chosen by the pole owner — to complete all the work to make a pole ready for a new attachment. “One touch” not only accelerates deployment but it reduces the disruption and inconvenience in a community’s streets that come from multiple construction crews performing “make ready” to move existing attachers and a final crew to attach the new entrant. “One touch” also is equitable because the use of a recognized authorized contractor protects the pole owner and other companies or entities that have equipment attached to poles, and all communications attachers have the same right to use the “one touch” process.

Not surprisingly, some entrenched companies are not fans of a “one touch” policy. Case in point: AT&T’s just filed lawsuit against the Louisville and Jefferson County Metro Government which seeks to nullify its “one touch” ordinance. The Louisville ordinance is reasonable, balanced, and enlightened public policy. It provides that once an applicant for an attachment receives approval from the pole owner, the attacher, at its own expense using a qualified construction crew pre-approved by the pole owner, can perform make ready within the Communications Worker Safety Zone to move non-electric supply facilities to facilitate a new attachment in accordance with the design plans approved by the pole owner. If the relocation of facilities would cause or would reasonably be expected to cause an outage to a customer of an existing attachment, then thirty days’ notice would be required before the attacher could do the work. The Louisville ordinance also provides for post work inspection, at the attacher’s expense, by the pole owner and the existing attacher(s) whose facilities were moved and remedial work if needed with the costs to be borne by the new attacher.

AT&T challenges the Louisville ordinance in federal court on the grounds that the ordinance conflicts with federal and state law and exceeds the jurisdiction of the Metro Government. The lawsuit presents the opportunity for the federal courts, especially those in home-rule states, to put to rest the notion that municipalities do not have the authority to adopt rules governing the work in their public streets and other rights-of-way controlling the work done by construction crews simply because that work impacts communications providers that separately may be regulated by the FCC or State public utility commissions.

In the Louisville case, moreover, the federal law AT&T cites is not even applicable to pole make ready work. The FCC has recognized at least twenty states that have certified that they regulate the rates, terms, and conditions governing access to poles by competitive telecommunications carriers, rendering federal law and regulation inapplicable. Kentucky is one of them. This means that the Louisville ordinance regarding make ready work cannot possibly be preempted by federal regulation. Anyway, the ordinance is consistent with the central point of the federal regulatory framework. FCC regulations explicitly recognize the ability of new attachers to use approved contractors to perform all make ready work in the communications space, subject to certain conditions. While those conditions posit that certain time periods must pass without existing attachers performing the work, the FCC recognizes that would-be attachers should, at some point, have the ability to perform make ready themselves, including relocation of existing attachments, using approved contractors.

Even more importantly, given that Kentucky has reverse preempted (thus making federal law inapplicable), the Louisville ordinance is consistent with State law. Section 278.040(2) of the state laws recognizes that the Public Service Commission (PSC) of the State “shall have exclusive jurisdiction over the regulation of rates and service of utilities.” And AT&T argues that regulation of rates and services of utilities includes the regulation of access to poles and rates for attachment. But AT&T’s complaint apparently overlooks that Section 278.040(2) includes an important exception and that the statutory authority of the PSC to regulate rates and services of utilities does not “limit or restrict the police jurisdiction, contract rights or powers of cities or political subdivisions.” The Louisville ordinance is precisely an exercise of the police jurisdiction of a city and political subdivision of the State over access to the rights-of-way in which the poles are located.

Louisville, operating in a home-rule State, also has the authority to “exercise any power and perform any function within its boundaries . . . that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.” KRS 82.082(1). The Kentucky statutes make clear when a power or function conflicts with a statute, namely that occurs only when “it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes…” KRS 82.082(2). Further, the statute that AT&T cites to defeat the Louisville ordinance on state law grounds (KRS 278.040(2)) makes clear that the authority granted to the PSC does not limit the police jurisdiction of the local governments. Indeed, the Louisville ordinance invokes that provision, as well as KRS 82.082, as the foundation for its action. In short, there is no conflict between the Louisville ordinance and state law.

Many local governments operate under constructs similar to that of Louisville where the state recognizes their police authority over the use of the public-rights-of way. Whether local governments are subject to home rule where municipal authority can be presumed within its borders unless expressly limited by the States or subject to the so-called “Dillon’s Rule” — where municipal power must be expressly or impliedly delegated by the state legislature — municipal authority inherently includes the authority to regulate access to rights-of-way, including access to utility poles in the rights-of-way. This result makes complete sense: if a local government could not require “one touch” construction on poles located in the public rights-of-way, it would be unable to fulfill its mandate to hold the public rights-of-way in trust for citizens and businesses, including not only the new attacher, but the existing attachers themselves which occupy, and attach to the utility poles, in the public rights-of-way as a result of authority granted by the municipal government.