AT&T Sues Nashville Over Pole Attachment Rights

AT&T is suing the city of Nashville over a decision to approve a “One Touch Make Ready” rule so Google Fiber can speed deployment of high-speed internet in the market. The Tennessean reported Mayor Megan Barry is expected to sign the bill into law, calling it a “common-sense” measure.
AT&T threatened to file suit and now it has, while Comcast, also disappointed in the measure, was weighing its options. Chris Levendos, director of national deployment and operations at Google Fiber, blogged about the company’s “incredibly slow progress” in Nashville, noting that of the 88,000 poles required to attach Google Fiber for its rollout, more than 44,000 will require make ready work, but only 33 have so far, according to Multichannel News.
In the complaint (via DSL Reports), filed in U.S. District Court, AT&T wants the court to stop the city from enacting the new ordinance. The suit, which also names the mayor and Nashville’s interim director of public works, says the new rules conflict with, and are preempted by the FCC’s pole attachment regulations. 
The carrier states in the complaint: “Under the new ordinance, where a third party seeks to attach equipment to an electric utility pole in the rights-of-way and AT&T already has lines or other equipment on the pole, the third party may remove, alter, and relocate AT&T’s facilities as it deems necessary, upon fifteen days’ notice. The work would cause or reasonably be expected to cause a customer outage, the third party may proceed after giving AT&T thirty days’ notice.”
The ordinance is invalid as a matter of Tennessee law because it conflicts with Metro Nashville’s Charter; it also conflicts with AT&T’s contract with Metro Nashville, according to the carrier.
Much of AT&T’s Network in Nashville consists of aerial telephone lines and associated equipment on 104,000 utility poles; most of those are in the public right-of-way. Nashville’s Electric Service owns some 80 percent of the poles and AT&T owns the balance.
The carrier’s contract with the city and the electric company, governing pole attachment dates to 1958; it remains in effect, according to the carrier. It generally allows each party to “maintain, rearrange, transfer and remove its own attachments.”
The new ordinance does not address public rights-of-way and “purports to regulate the terms and conditions upon which a person can move or rearrange existing communications lines or equipment owned by a third party on existing utility poles, in order to accommodate that person’s attachment of new communications lines or equipment,” AT&T tells the court, allowing an “attacher” to do the work.
A pre-existing user has 30 days to perform work under the new rule; if the work cannot be completed within that time the “attacher” may perform the work, “even if it requires disrupting service.”
That means a third-party could “temporarily seize AT&T’s property, and to alter or relocate AT&T’s property, without AT&T’s consent and with little notice,” the carrier tells the court. The company also wouldn’t have enough time to assess the potential for network disruption caused by an equipment change or move. In short, AT&T would be powerless to oversee the work on its own facilities “to ensure any potential for harm to its network, including harm to the continuity and quality of service to its customers, is minimized.”
The ordinance also permits an attacher to rearrange AT&T facilities on NES poles without regard to AT&T’s standards for work on its facilities. Within 30 days, the attacher must notify the carrier of any work it completed. AT&T would have 60 days to inspect the work, and if it doesn’t meet NES standards, AT&T can demand the work be re-done at the attacher’s expense.
The carrier says the ordinance is a “drastic” change from the FCC’s current pole attachment rules which provide a company with existing attachments to provide prior written notice of any work that would affect its equipment. Then the company has 60 days to modify its equipment to accommodate another company that wants to attach gear to the pole.
AT&T has invested “hundreds of millions” of dollars in deploying, maintaining and upgrading its equipment in metro Nashville. That includes fiber transport and copper feeder cables. “Some of AT&T’s aerial fiber facilities are used to provide high-capacity switched Ethernet services to various customers including police and fire stations, and to wireless carriers that use the fiber to carry wireless traffic to and from their cell towers. Damage to these facilities could knock out service to emergency responders, and take a cell tower out of service,” it tells the court.
Even one mistake on a pole can “easily” cost AT&T more than $75,000. The carrier has been sued several times for personal injuries and property damage related to equipment placement and maintenance on poles. If a third party’s work caused a service outage, repairing even one fiber optic cable, for example, costs “well over” $75,000 to replace.