City Wins, AT&T Loses, in Kentucky Pole Attachment Dispute

SHARE THIS ARTICLE

A federal court has sided with a Kentucky municipality and against AT&T in a case concerning access to utility poles. No state or federal law prevents Louisville, KY from requiring a “one-touch make-ready” ordinance outlining new procedures for installing communications infrastructure on utility poles in the city, a U.S. District Court for the Western District of Kentucky ruled Thursday.

Make-ready work generally consists of moving or rearranging existing wires and attachments on utility poles to make space for new attachments. One-touch make-ready policies seek to avoid delays by having all make-ready work performed at the same time by a single crew.

AT&T subsidiary BellSouth Telecommunications fought Louisville’s right to allow new users to rearrange existing pole attachments. AT&T asked the court to declare the ordinance unlawful, while the city said it has the authority to manage its public rights-of-way. AT&T told the court it invested “millions of dollars” to build and maintain a communications network in Louisville. AT&T owns most of the poles it uses in Louisville and contracts with Louisville Gas & Electric for others. 

The ordinance in dispute states an “attacher may relocate or alter the attachments” of any pre-existing user in order to accommodate the new attachment “using pole owner approved contractors,” according to the court decision signed by U.S. District Court Judge David Hale and examined by Inside Towers. The “attacher” can do this without notifying the existing pole user ahead of time but must notify them within 30 days after performing the work. The existing pole user and the pole owner then have 14 days to inspect the third-party’s work at the attacher’s expense.

The way AT&T sees it, the ordinance allows an attacher to “seize AT&T’s property, and to alter or relocate AT&T’s property, without AT&T’s consent and, in most circumstances, without prior notice to AT&T,” it says in the document. That means, according to the carrier, it can’t assess the potential for network disruption or oversee the work to ensure any network damage “is minimized.”

AT&T wanted the court to declare that only the Kentucky Public Service Commission can regulate pole attachments, that Louisville’s ordinance exceeds its authority and FCC regulations pre-empt Louisville’s authority. But Louisville Metro argued, and the FCC agreed, the agency’s pole-attachment regulations do not apply in Kentucky. The Commission explained it “retains jurisdiction over pole attachments only in states” that have not certified that they regulate poles.

Louisville Metro told the court the city has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety. It asserts the ordinance is valid under Kentucky law because it falls within the city’s police power to manage public rights-of-way, and the court agreed.

August 18, 2017     

Reader Interactions

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.