How Municipalities are Placing Taxpayer Money At Risk with “One Touch Make Ready” Ordinances
What happens when a city receives a compelling offer for an ultra-high speed fiber network, but construction of the network is exceedingly slow because of red tape? The answer from city officials seems to be cutting through red tape by passing ordinances—ordinances that may violate federal law.
At least, that is the approach Louisville, Kentucky and Nashville, Tennessee may be taking to help Google deploy its ultra-high speed broadband called Google Fiber. This is approach, though, will likely cost taxpayers hundreds of thousands of dollars, if not millions of dollars in legal fees.
Louisville passed what is called a “One Touch Make Ready” ordinance, while Nashville, Tennessee will soon consider a similar ordinance. AT&T sued the city in federal court, asking the court to prevent Louisville from enforcing the ordinance. A federal court recently allowed AT&T’s suit to proceed.
Google is building its network in a small number of cities. To deploy Google Fiber, Google needs access to existing utility poles.
Most poles in cities are owned either by a local utility company, municipality, co-op or a telecommunications company, such as AT&T or Comcast. The poles frequently do not carry only one company’s lines. Instead, many of these utilities and companies have agreements with each other, guided by federal laws and regulations, regarding the installation and maintenance of the lines.
The process of making a pole ready for additional attachments takes time. The companies that own the pole, or have equipment on the pole, must prepare for the addition of a new company’s equipment. The companies with equipment on the poles must have their own employees or contractors inspect and prepare the pole. The entire process of making a pole ready can take months—months that municipalities are unwilling to wait.
Instead of waiting for companies to complete the work, city and county officials are considering ordinances bypassing the rights of the companies owning the poles. In bypassing these rights, local officials place consumer services and taxpayer funds at risk.
The ordinance allows a third party to relocate equipment on a pole, without notifying the equipment’s owners, unless the third party believes there will be a service outage. According to AT&T, “under the new ordinance, where a third party seeks to attach equipment to a 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.”
Federal law and regulations are also clear; they preempt local ordinances. The Federal Communications Commission, consistent with Congressional action, has promulgated rules regulating “the rates, terms, and conditions for pole attachments.”
The regulations are thorough. The regulations require notice to pole and equipment owners, and allow them 60 days in which to modify equipment to accommodate the new third parties. The thoroughness does not allow much room for municipalities to operate. Under existing case law, municipal ordinances cannot establish standards different than federal standards. To the extent ordinances contradict federal regulations pole owners can sue in efforts to block the ordinances.
States should be concerned with protecting taxpayers as municipalities are frustrated by red tape and pass ordinances that contradict federal law and regulations. By passing ordinances contradicting federal regulations, municipalities spend money on legal fees rather than on rehabilitating failing roads, bridges, pipe systems or other more needful infrastructure.
There is a way, certainly, to streamline the process of making poles ready while recognizing federal law and the rights of the company owning the poles. Any answer, though, must keep customer service and the taxpayers in the forefront of the discussion.