“One-Touch Make Ready” for Pole Attachments Declared Lawful By United States Federal District Court

August 23, 2017

After approximately 40 years of differences between owners of utility poles, communication companies with existing attachments to those poles and would-be attachers over the process for making new pole attachments, a U.S. District Court in Kentucky found a Louisville, Kentucky ordinance mandating a streamlined attachment process  lawful.   The so-called “one-touch make-ready” approach requires the new attacher to employ contractors approved by the pole owner to relocate or alter existing pole attachments and then make the attachments for the new attaching communications company.  The process of altering, moving, relocating or reconfiguring existing attachments on a pole to accommodate new attachments is known in the industry as “make-ready.”  The U.S. District Court for the Western District of Kentucky, Louisville Division, approved the Louisville Ordinance mandating “one-touch make-ready” on August 16, 2017 in the case Bellsouth Telecommunications, LLC v Louisville/Jefferson County Metro Gov’t, et al.¸ CA No. 3:16-cv-124-DJH.  The Memorandum Opinion and Order of U.S. District Judge David J. Hale can be found at this link: ONE TOUCH OPINION.

The decision is significant for two reasons.  First, it approves of one potential legislated solution to the longstanding issue of coordinating make-ready work on the interstices of the nation’s information superhighway.  Communications companies looking to deploy new attachments are typically focused on deploying their fiber or cable as quickly as possible.  Those communications companies with pre-existing attachments are focused on maintaining the integrity and operability of their existing network while minimizing disruptions, distractions and unnecessary costs.  And the utilities owning the poles are often stuck in the middle, concerned with the safety, reliability and capacity of their existing infrastructure in service of their core business while meeting any legal requirements to facilitate access to and ongoing use of their poles.

Second, the decision defined and limited the reach of the Federal Communications Commission’s (“FCC”) jurisdiction pursuant to 47 U.S.C. § 224, at least in a state that has certified it regulates pole attachments under the reverse preemption provision of Section 224(c).  The court held that once a state certifies that it regulates pole attachments, it has completely reverse preempted the FCC so that it is deprived of any regulatory authority over pole attachments in that state.  In the court’s view, there is no “gap” jurisdiction that defaults to the FCC should some aspect of pole attachment regulation by a state such as Kentucky arguably be improper or overlooked.  This is contrary to the view long held by at least some practitioners in this regulatory field and, of course, by AT&T.          

There are at least two issues the case does not address.  It does not address whether jurisdiction over pole attachments remains with or reverts to the FCC where a state has certified that it has reverse preempted the FCC, but done so unlawfully or inadequately.  The case also does not address the issue of whether the FCC’s jurisdiction would preempt that of a locality in a state that has not reverse preempted the FCC when the locality enacts an ordinance that both relies on its police power to manage its rights of way and also addresses some aspect of the terms and conditions of pole attachments. 

Nonetheless, the ordinance and decision may provide a roadmap for other interested parties as they consider the pros and cons and the lawfulness of one-touch make-ready solutions.  The Louisville ordinance, passed in 2016, requires the new attacher to use contractors approved by the pole owner to do both the make-ready and new attachment work using just one crew (thus, the “one-touch”), without prior notice to the communications company owning pre-existing attachments if the make-ready will not cause or “reasonably be expected to cause a customer outage.”  Once the make-ready work is completed, the new attacher must notify the pre-existing attacher within 30 days of completion, after which the pre-existing attacher and pole owner have 14 days to inspect, at the new attacher’s expense, the work done.

AT&T challenged the ordinance on the grounds that it infringed upon the exclusive jurisdiction of the Kentucky Public Service Commission over pole attachments under state law, exceeded the Louisville Metro Council’s authority under Kentucky law and was preempted by federal law.  Finding that the ordinance was a proper exercise of a city’s police power as to the management of its public rights-of-way, the court granted summary judgment to Louisville.

This Energy and Telecommunications Alert is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.  If you have any questions regarding the above, please contact Charles Zdebski at 202.659.6605 (czdebski@eckertseamans.com).         

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