in the united states district court for the western...

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

BELLSOUTH TELECOMMUNICATIONS,

LLC,

Plaintiff,

v.

LOUISVILLE/JEFFERSON COUNTY

METRO GOVERNMENT; GREGORY E.

FISCHER, IN HIS OFFICIAL CAPACITY

AS MAYOR; AND VANESSA D. BURNS,

IN HER OFFICIAL CAPACITY AS

DIRECTOR OF THE DEPARTMENT OF

PUBLIC WORKS,

Defendants.

Electronically Filed

Case No. 3:16-cv-00124-TBR

MOTION OF GOOGLE FIBER INC. FOR LEAVE TO FILE A BRIEF

AMICUS CURIAE IN OPPOSITION TO AT&T’S MOTION FOR

SUMMARY JUDGMENT AND IN SUPPORT OF LOUISVILLE METRO’S

CROSS-MOTION FOR SUMMARY JUDGMENT

Google Fiber Inc. (“Google Fiber”) respectfully moves this Court for leave to file a brief

amicus curiae in opposition to the motion for summary judgment of BellSouth

Telecommunications, LLC (“AT&T”) and in support of the cross-motion for summary judgment

of Louisville/Jefferson County Metro Government (“Louisville Metro”). The reasons for

granting this motion are stated in a memorandum filed herewith and incorporated herein. Google

Fiber has requested consent of both parties to Google Fiber’s filing of an amicus brief.

Defendant Louisville Metro does not object. Plaintiff AT&T has indicated that it would object.

A proposed order granting this Motion is tendered herewith.

Case 3:16-cv-00124-TBR Document 56 Filed 10/06/16 of 2 PageID #: 838

2

Respectfully submitted,

/s/ Byron E. Leet

Byron E. Leet

[email protected]

Brittany L. Hampton

[email protected]

Wyatt, Tarrant & Combs LLP

500 West Jefferson Street, Suite 2800

Louisville, KY 40202

Telephone: (502) 562-7354

Facsimile: (502) 589-0309

Email: [email protected]

and

Timothy J. Simeone (pro hac vice pending)

Kristine L. Devine (pro hac vice pending)

Elizabeth B. Uzelac (pro hac vice pending)

Harris, Wiltshire & Grannis LLP

1919 M Street NW, Eighth Floor

Washington, DC 20036

Telephone: (202) 730-1300

Facsimile: (202) 730-1301


Counsel for Amicus Curiae Google Fiber

Inc.

CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2016, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system, which will serve notice electronically on all

counsel of record.

/s/ Byron E. Leet

Byron E. Leet

Counsel for Google Fiber Inc.

61549565.1

Case 3:16-cv-00124-TBR Document 56 Filed 10/06/16 of 2 PageID #: 839



LOUISVILLE DIVISION


LLC,

Plaintiff,

v.







PUBLIC WORKS,

Defendants.



MEMORANDUM OF GOOGLE FIBER INC. IN SUPPORT OF MOTION FOR LEAVE

TO FILE A BRIEF AMICUS CURIAE IN OPPOSITION TO AT&T’S MOTION FOR

SUMMARY JUDGMENT AND IN SUPPORT OF LOUISVILLE METRO’S


Google Fiber Inc. (“Google Fiber”) respectfully submits this memorandum in support of

its motion for leave to file a brief amicus curiae in opposition to the motion for summary

judgment of BellSouth Telecommunications, LLC (“AT&T”) and in support of the cross-motion

for summary judgment of Louisville/Jefferson County Metro Government (“Louisville Metro”).

I. NATURE OF GOOGLE FIBER’S INTEREST

Google Fiber provides high-speed Internet access, television, and Voice-over-Internet-

Protocol phone services to subscribers in cities across the country. Google Fiber currently serves

subscribers in eight metropolitan areas and seeks to expand to additional cities, potentially

including Louisville, Kentucky. Before construction of a new Google Fiber network begins,

Google Fiber undertakes an in-depth assessment of the relevant laws at the city, state, and federal

Case 3:16-cv-00124-TBR Document 56-1 Filed 10/06/16 Page 1 of 4 PageID #: 840

2

level. Google Fiber also works closely with city leaders to review existing local infrastructure,

both public and privately owned, to determine the best way to deploy a new network—for

example, by using existing utility poles to provide an aerial route for fiber-optic cable. Experts

then evaluate the real-world circumstances along potential aerial fiber routes to complete the

network design.

As a result of its experience working with different municipalities in different states to

deploy networks in new communities, Google Fiber is familiar with the variety of approaches

municipalities take to regulating construction in their rights-of-way. Google Fiber is also

experienced with the interplay among federal, state, and municipal laws relating to utility pole

attachments, including in states that, like Kentucky, have “reverse preempted” the federal pole

attachment rules under 47 U.S.C. § 224. These experiences allow Google Fiber to provide the

Court with a distinctively informed perspective on the issues presented in this case.

No counsel for any party authored the tendered amicus brief in whole or in part; no party

or party’s counsel made a monetary contribution to fund its preparation or submission; and no

person other than Google Fiber or its counsel made such a monetary contribution.

II. RELEVANCE TO THIS ACTION

It is within this Court’s “sound discretion” to allow Google Fiber’s participation as

amicus curiae in this matter. United States v. State of Michigan, 940 F.2d 143, 165 (6th Cir.

1991). The amicus brief tendered here will be useful to the Court because it draws on Google

Fiber’s operational expertise to explain why Ordinance No. 021, Series 2016 (the “Ordinance”)

is a legitimate exercise of municipal authority over local rights-of-way that is consistent with

federal and state law. In the brief, Google Fiber explains why the federal law on which AT&T

relies does not apply and why, under Kentucky law, the Ordinance is a legitimate exercise of the


3

municipal police power to manage construction activities that disrupt local public rights-of-way.

Google Fiber also explains how the Ordinance addresses real-world concerns of new entrants

that seek to deploy high-speed broadband infrastructure and services to new consumers while

minimizing the attendant safety risk, disruption, and inconvenience to the communities being

served.

Google Fiber’s participation will not delay or otherwise burden this litigation. Google

Fiber has followed the progress of this case and reviewed the relevant filings. Google Fiber is

making its motion and tendering the amicus brief on the same date that Louisville Metro’s

response to AT&T’s pending motion for summary judgment is due.

III. CONCLUSION

For the foregoing reasons, Google Fiber respectfully requests that this Court grant its

motion for leave to file a brief amicus curiae in opposition to AT&T’s motion for summary

judgment and in support of Louisville Metro’s cross-motion for summary judgment.


/s/ Byron E. Leet

Byron E. Leet

[email protected]

Brittany L. Hampton

[email protected]




Telephone: (502) 562-7354

Facsimile: (502) 589-0309


and


4







Telephone: (202) 730-1300

Facsimile: (202) 730-1301



Inc.




counsel of record.

/s/ Byron E. Leet

Byron E. Leet


61549563.1




LOUISVILLE DIVISION


LLC,

Plaintiff,

v.







PUBLIC WORKS,

Defendants.



BRIEF OF AMICUS CURIAE GOOGLE FIBER INC. IN OPPOSITION

TO AT&T’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF

LOUISVILLE METRO’S CROSS-MOTION FOR SUMMARY JUDGMENT

Amicus curiae Google Fiber Inc. (“Google Fiber”) submits this brief in opposition to the

motion for summary judgment of BellSouth Telecommunications, LLC (“AT&T” or “Plaintiff”)

and in support of the cross-motion for summary judgment of Louisville/Jefferson County Metro

Government (“Louisville Metro”). Google Fiber’s experience constructing new broadband

networks across the country enables it to offer this Court a real-world perspective on how

municipal laws like Ordinance No. 021, Series 2016 (the “Ordinance”) reduce the disruptions to

public rights-of-way that inevitably accompany broadband deployment. This brief draws on

Google Fiber’s operational expertise to explain why the Ordinance is a legitimate exercise of

municipal authority over local rights-of-way that is consistent with federal and state law.


2

INTEREST OF AMICUS CURIAE

Google Fiber provides high-speed Internet access, television, and Voice-over-Internet-

Protocol phone services to subscribers in cities across the country. Google Fiber currently serves

subscribers in eight metropolitan areas and seeks to expand to additional cities, potentially

including Louisville, Kentucky.

Deploying Google Fiber is a long-term investment. Google Fiber begins the process by

working closely with city leaders to review existing local infrastructure, both public and

privately owned, as well as applicable local laws, standards, and permitting capabilities. During

this city-specific review, Google Fiber considers how the current infrastructure could help to

support a new network—for example, by using existing utility poles to provide an aerial route for

fiber. Experts then evaluate the real-world circumstances along the identified routes to fill in the

details necessary for a full network design. Once a design is in place, constructing the new

network begins.

As a result of its experience working with different municipalities to bring high-speed

broadband networks to new communities, Google Fiber is familiar with the variety of approaches

municipalities take to regulating construction in their rights-of-way. Google Fiber is also

experienced with the interplay among federal, state, and municipal laws relating to utility pole

attachments. In this proceeding, Google Fiber seeks to assist this Court in understanding the

concerns of new entrants seeking to deploy high-speed broadband infrastructure and services

with minimal safety risk, disruption, and inconvenience to local communities.

INTRODUCTION AND SUMMARY OF ARGUMENT

Building a new network is complicated and involves many parties, including (for aerial

routes) the new entrant, utility pole owners (typically the electric utility or the historical

incumbent telephone company), service providers and other entities with existing attachments on


3

the poles, and the local authorities that oversee activities in the public rights-of-way. Like any

construction in public rights-of-way, fiber deployment inevitably disrupts normal usage of roads

and sidewalks, increasing congestion and raising safety concerns.

The particular type of work involved in this case, “make-ready” construction, involves

the adjustment or rearrangement of existing wires that are attached to utility poles. Traditionally,

make-ready construction has involved an inefficient serial approach. Under that approach, each

existing attacher adjusts its own facilities to make room on the pole for the new attacher, and one

existing attacher follows another upon notification that the prior attacher has completed its move.

Each “truckroll” in the sequence of visits to the same utility pole may again impede traffic and

cause inconvenience and potentially dangerous conditions for the public.

Louisville Metro’s Ordinance facilitates multi-party construction work in its rights-of-

way. In many cases there is no reason to expect that make-ready work would result in any

service outage whatsoever; the work involves simply moving an existing line up or down on a

pole to free up space, or adjusting the way the line is attached to the pole. In these cases, the

Ordinance allows a streamlined alternative to the traditional serial approach. Under that

alternative process, a single construction crew, hired and paid for by the new attacher but pre-

approved by the pole owner, makes one trip to perform all necessary adjustments to ready the

pole. The Ordinance thus facilitates joint construction activities performed by all existing and

new pole attachers to minimize potentially dangerous and disruptive activities in Louisville’s

local rights-of-way.

Plaintiff’s arguments for enjoining the Ordinance should be rejected. Its federal

preemption argument ignores that the federal rules on which it relies do not apply in Louisville at

all: Kentucky has exercised its right under federal law to regulate the rates, terms, and conditions


4

of pole attachments at the state level instead of having them be subject to federal pole attachment

regulations. See 47 U.S.C. § 224(c). The Federal Communications Commission (“FCC”) has

acknowledged that Kentucky has taken the necessary steps to do this, see, e.g., Implementation

of Section 224 of the Act, 26 FCC Rcd. 5240, 5371 at Appendix C (2011), thus foreclosing

Plaintiff’s argument that the Ordinance conflicts with federal pole attachment law.

The Ordinance is also consistent with state law. Kentucky law gives municipalities

“control over the spaces within their boundaries occupied by public ways,” City of Covington v.

Averbeck, 50 S.W.2d 50, 52 (Ky. 1932), while granting the Kentucky Public Service

Commission (“PSC”) “exclusive jurisdiction over the regulation of rates and service of utilities.”

Ky. Rev. Stat. Ann. § 278.040(2). Here, Louisville Metro is addressing how attachers to a pole

carry out construction while they are in the “public ways.” Because the Ordinance goes no

farther than the local construction activities of attachers—and does not contradict any policy of

the PSC—the Ordinance does not conflict with the PSC’s jurisdiction over pole attachment

services offered by pole owners.

BACKGROUND

Google Fiber designs and constructs new broadband networks to deploy high-speed

broadband services to its customers. In many communities, the only practicable way to build a

new fiber-optic network requires stringing Google Fiber’s new cable along existing utility pole

lines. For such aerial deployments, Google Fiber strings hundreds or even thousands of miles of

fiber across thousands of utility poles to reach customers. Deployment of new fiber networks in

this way provides customers very fast connection speeds—often considerably faster than what

the existing cable and telephone networks offer. Where Google Fiber introduces service,

existing providers invariably increase the quality or lower the cost of their own services to meet

the new competition.


5

I. NETWORK DEPLOYMENT CAUSES DISRUPTIONS AND SAFETY RISKS

THAT ARE OF LEGITIMATE CONCERN TO LOUISVILLE METRO.

The process of physically deploying new fiber is complicated, and necessarily involves

many parties. At a minimum, new entrants like Google Fiber must coordinate their activities

with utility pole owners, with other entities that have existing attachments on utility poles, and

with the local authorities that oversee all construction in public rights-of-way. Existing pole

attachments include cable and telephone lines, but may also include other lines used for

streetlights, traffic signals, antennas, school or municipal communications systems, and other

types of systems. Using their police power and traditional tools of municipal governance, cities

and towns balance a variety of interests related to these systems in the rights-of-way, including

protecting public safety and health, fostering the efficient administration of local permitting

processes, preserving the community’s ability to use streets and sidewalks without being

inconvenienced, and encouraging economic development. The tools employed by municipalities

include permitting, zoning, and—as Louisville Metro’s Ordinance illustrates—construction

standards and mandatory coordination of different users’ construction activities.

Before Google Fiber (or any provider) can attach a new line to a utility pole, “make-

ready” construction is often needed—that is, the existing attachments need to be adjusted or

rearranged to make space on the pole. See Implementation of Section 224 of the Act, 26 FCC

Rcd. at 5248 ¶ 13 n.42 (“‘Make-ready’ generally refers to the modification of poles or lines or

the installation of guys and anchors to accommodate additional facilities.”). The make-ready

process, as it has traditionally been performed, often involves a serial approach to the work

required. Under that approach, each existing attacher adjusts its own facilities in a sequence set

out by the pole owner. The attacher may send one crew to perform its work—or it may send

multiple crews to perform different kinds of work. Other attachers then do the same with their


6

own facilities and their own employees or contractors, often resulting in many “truckrolls.”

Trucks may line the side of the road and block sidewalks on and off for months as the attachers

work in sequence. In Louisville and elsewhere, this type of process has caused public frustration

and complaint. See, e.g., An Ordinance Amending Chapter 116 of The Louisville Metro Code of

Ordinances Regarding Communication Services Franchises (Amendment by Substitution) (As

Amended) Before the Louisville Metro Council at 2:19:25 (Louisville Metro Gov’t Feb. 11,

2016) (“February 11, 2016 Louisville Metro Council”) (testimony of Councilman Kevin

Kramer), http://louisville.granicus.com/MediaPlayer.php?view_id=2&clip_id=4436 (noting that

council members have fielded “complaints about folks who are needing to move things on utility

poles and how long it takes to get that done”). Each truckroll may impede traffic, inconvenience

residents, and create a potentially dangerous environment that contributes to collisions and

pedestrian injuries, among other dangers. Indeed, in 2015 alone, utility or maintenance work

zones were a factor in 136 traffic collisions in Kentucky, including two fatal collisions.

COMMONWEALTH OF KENTUCKY, TRAFFIC COLLISION FACTS 28 (2015 Report),

http://transportation.ky.gov/Highway-Safety/Documents/2015_KY_Traffic_Collision_Facts.pdf.

This serial approach leads to unnecessary disruptions and delays even when all of the

parties fully cooperate. “[L]ack of coordination of existing attachers” is a recurring issue for

pole attachments. Implementation of Section 224 of the Act, 26 FCC Rcd. at 5251 ¶ 21. In

reality, moreover, existing attachers are not always eager to complete work that will enable rival

entrants to offer competitive services, and incumbent control of critical facilities is often

identified as an impediment to the deployment of new network technologies. See, e.g., id.

(noting the “generalized problem” of “utility lack of timeliness from initial request through

completion,” and “pervasive and widespread problems of delays in survey work [and] delays in


7

make-ready performance” (footnotes omitted)); FEDERAL COMMUNICATIONS COMMISSION,

CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 111 (2010) (setting forth a broadband

provider’s view that “the most significant obstacle to the deployment of fiber transport is [its]

inability to obtain access to pole attachments in a timely manner”).

Thus, although industry standards suggest that each individual attacher’s part of serial

make-ready might be expected to take between thirty and sixty days to complete, outliers often

extend the overall timeline dramatically. To take one concrete example, an incumbent attacher

in one Google Fiber city currently takes an average of eighty-one days to complete just its own

phase of make-ready work. When this occurs, the cumulative impact under the serial approach is

severe. By the time all the attachers have done their work, it can ultimately take months or even

years to be ready to attach a new line to a pole. Preparing a single neighborhood route for

Google Fiber’s attachment routinely takes six months or more due to the delays built into the

serial process.

Furthermore, delays at the make-ready stage trickle down into later phases of

deployment. For example, lost time associated with serialized make-ready work has led to the

expiration of required municipal construction permits in some Google Fiber cities. Obtaining

renewals of those permits prolongs the process and creates additional cost and delay, not just for

the entity seeking the permits but also for the municipality overseeing permitting and other

administrative processes. Similarly, an existing attacher that fails to complete its round of make-

ready on a single pole in a timely fashion may affect a new attacher’s ability to attach lines to

other poles that are ready, because some pole owners require all make-ready in the entire work

area to be complete before any deployment may proceed.


8

II. THE ORDINANCE ADDRESSES ISSUES OF SAFETY AND DISRUPTION TO

THE COMMUNITY.

By adopting a “climb once” process, or “one-touch make-ready,” for Louisville Metro’s

rights-of-way, the Ordinance addresses problems associated with the serial make-ready

procedure and thereby helps improve safety and reduce community disruption. The Louisville

Metro Council considered that the Ordinance would “reduc[e] inefficiencies and congestions on

[Louisville] streets.” February 11, 2016 Louisville Metro Council at 2:16:34 (testimony of

Councilman Bill Hollander); see also An Ordinance Amending Chapter 116 Of The Louisville

Metro Code Of Ordinances Regarding Communication Services Franchises (Amendment By

Substitution) Before the Public Works, Bridges & Transportation Committee at 18:12 (Louisville

Metro Gov’t Feb. 2, 2016) (“February 2, 2016 Louisville Metro Public Works Committee”)

(testimony of Councilman Bill Hollander),

http://louisville.granicus.com/MediaPlayer.php?view_id=2&clip_id=4421&meta_id=523828

(noting that the Ordinance would “reduce disruption and inconveniences on [Louisville]

streets”). The Ordinance encourages new and existing attachers to coordinate construction

activities into “one truckroll” that enables crews to be “in and out of the neighborhoods [with

the] least disruption.” February 2, 2016 Louisville Metro Public Works Committee at 17:43

(testimony of Ted Smith, Office of Civic Innovation).

The Ordinance establishes that when make-ready construction does not threaten a service

outage, a single construction crew can perform the adjustments that are necessary to make the

pole ready. The pole owner—whether it is an electric utility, a telecommunications company, or

another entity—controls which crews are pre-approved to do this work. Using a single crew

greatly reduces the number of trips needed to complete work on a given pole as compared to the

serial approach, which in turn reduces many of the other negative effects of construction,


9

including traffic congestion, blocked sidewalks, increased wear on roads, and even the number of

times workers need to climb utility poles. The community benefits from less disruption to the

flow of traffic and from fewer bouts of construction affecting roads and sidewalks. Safety is

improved by having all work done to a pole in a coordinated fashion. Finally, by simplifying the

process of coordinating construction between a new provider and existing attachers, the

Ordinance reduces the number of days needed to complete make-ready work, which speeds

deployment—making the community more attractive for broadband investment.

One-touch make-ready policies have correctly been likened to “dig once” policies, the

“no-brainer actions” that decrease the disruption and cost associated with underground

deployment of new broadband networks while speeding deployment by “mandat[ing] laying

conduit and/or fiber optic cables when undertaking capital projects such as road construction.”

See “One Touch” Make-Ready Policies: The “Dig Once” of Pole Attachments, NEXT CENTURY

CITIES (Jan. 6, 2016), http://nextcenturycities.org/2016/01/06/one-touch-make-ready-policies-

the-dig-once-of-pole-attachments/. Municipalities routinely adopt dig once ordinances and

variations requiring coordination of excavation in their rights-of-way. See, e.g., Houston, Tex.,

Municipal Code § 40-145 (requiring mandatory joint trenching and prohibiting re-excavation

within a certain amount of time); Santa Monica, Cal., Municipal Code § 7.06.300(a) (requiring

that work be designed and scheduled “so as to coordinate . . . with other persons installing,

constructing, or maintaining facilities in the [public rights-of-way] and with the City”). Like

these dig once policies, the climb once provisions of the Ordinance reduce the need for team

after team of construction workers to cause inconvenient, unsightly, and possibly dangerous

disruptions along roadways and sidewalks and set a baseline for multi-party construction

activities in the local rights-of-way.


10

ARGUMENT

Municipal one-touch make-ready policies like the Ordinance complement rather than

conflict with federal and state laws governing pole owners’ provision of space for attachments.

Plaintiff argues that the Ordinance is preempted by federal pole attachment rules—ignoring that

those rules are inapplicable in Kentucky—and also by state law that purportedly gives the

Kentucky PSC exclusive jurisdiction over pole attachments. These arguments are internally

inconsistent and wrong.

The Ordinance is a valid exercise of Louisville Metro’s unquestioned authority to manage

construction activities in public rights-of-way, establishing a streamlined make-ready process

that will enhance public safety while reducing disturbance and congestion. At the same time, the

process protects pole owners’ property and existing attachers’ service lines by mandating the use

of experienced crews that the pole owners have pre-approved. Finally, Louisville Metro has

exercised its municipal authority in a way that is not merely consistent with, but actually

anticipated by, both federal and state law.

I. THE FEDERAL POLE ATTACHMENT RULES DO NOT APPLY BECAUSE

KENTUCKY HAS EXERCISED ITS RIGHT TO REVERSE PREEMPT THEM.

Plaintiff’s federal preemption argument overlooks a fundamental aspect of the federal

pole attachment rules: those rules do not apply where a state has exercised its right not to rely on

federal pole attachment regulations, but instead to regulate at the state level the rates, terms, and

conditions under which pole owners offer attachments. Such an assertion of state authority is

often referred to as “reverse preemption,” and Kentucky has unquestionably done so. Plaintiff’s

federal preemption claim cannot survive Kentucky’s reverse preemption of the federal pole

attachment rules and the FCC’s explicit acknowledgement of the state’s action.


11

In 1978, Congress adopted the federal Pole Attachment Act authorizing the FCC to

“regulate the rates, terms, and conditions for pole attachments” on “just and reasonable” terms.

47 U.S.C. § 224(b)(1). Although electric utilities and telephone companies had long shared

ownership and costs of utility poles, the emergence of cable television in the 1970s increased

demand for access to those poles to build those new networks. Congress concluded that

regulation was required as a result of pole owners’ efforts to prevent the new cable companies

from accessing poles, to compel unreasonable terms of access, and “to charge monopoly rents for

that access.” Am. Elec. Power Serv. Corp. v. FCC, 708 F.3d 183, 185 (D.C. Cir. 2013) (quoting

Nat’l Cable & Telecomms. Ass’n v. Gulf Power Co., 534 U.S. 327, 330 (2002)); see also H.R.

Rep. No. 95-721, pt. 2, at 3 (1977) (noting testimony by cable executives that utilities could

force them into “virtual contracts of adhesion” on a “take-it-or-leave-it basis” in light of the

cable industry’s “total dependen[ce] on telephone and power company poles”).

But the regulation that Congress authorized the FCC to adopt was limited in scope. Both

Congress and the FCC stated that the new federal regulation would supplement current and

future state and local regulation of pole attachments. See S. Rep. No. 95-580, at 16-18 (1977),

reprinted in 1978 U.S.C.C.A.N. 109, 124 (observing that pole attachments are “essentially local

in nature”); Adoption of Rules for the Regulation of Cable Television Pole Attachments, 68

F.C.C.2d 3, 4 ¶ 4 (1978) (citing S. Rep. No. 95-580 and noting that attachments are “ideally a

matter for state or local regulation”). Consistent with these statements, the federal Pole

Attachment Act expressly provides that states may opt entirely out of federal regulation of pole

attachments. Specifically, Section 224 provides: “Nothing in this section shall be construed to

apply to . . . pole attachments in any case where such matters are regulated by a State.” 47

U.S.C. § 224(c)(1).


12

The Pole Attachment Act further sets forth that a state may exercise this right to opt out

by certifying to the FCC that it regulates the rates, terms, and conditions of pole attachments, and

that it considers the interests of subscribers and utility customers in doing so. See id. § 224(c)(2).

The state must also adopt rules and regulations pursuant to its exercise of that authority. See id.

§ 224(c)(3)(A). So long as the state takes timely action on any subsequent pole attachment

complaints, see id. § 224(c)(3)(B), that state’s certification that it meets these requirements

forecloses the application of the federal pole attachment rules within the state. See

Implementation of Section 224 of the Act, 26 FCC Rcd. at 5331–32 ¶ 210 & n.636 (noting that

“the Commission has no jurisdiction under section 224 to regulate pole attachment matters in

states that have certified that they regulate pole attachments”).

The FCC acknowledges that Kentucky, like 19 other states and the District of Columbia,

has taken the necessary steps to reverse preempt the FCC’s pole attachment rules. See id. at

5371 at Appendix C; States That Have Certified That They Regulate Pole Attachments, 25 FCC

Rcd. 5541 (2010). Kentucky’s FCC-recognized certification that it regulates pole attachments,

together with its promulgation of the requisite regulations, 807 Ky. Admin. Regs. 5:006 § 22,

flatly forecloses Plaintiff’s claim that the Ordinance “conflicts with and is preempted by” the

FCC’s pole attachment rules. See MCI Telecomms. Corp. v. N.Y. Tel. Co., 134 F. Supp. 2d 490,

504 (N.D.N.Y. 2001) (holding that the New York Public Service Commission “is neither bound

by [an FCC pole attachment ruling] nor does its decision [contrary to that ruling] violate section

224” because New York has exercised its right to reverse preempt the federal pole attachment

rules); Implementation of Section 224 of the Act, 26 FCC Rcd. at 5243 ¶ 7 (noting that the FCC

“retains jurisdiction over pole attachments only in states that do not . . . certify [that they regulate

pole attachments]”).


13

Congress’s determination that the states should be allowed to opt out of federal pole

attachment regulations serves important policy purposes. As the FCC has explained, the

“state[s’] experience with regulation of pole attachments provides an invaluable opportunity for

the Commission to observe what works and what does not work to achieve policy goals.” Id.;

see also id. (explaining that the federal rules “buil[t] on the work of [the FCC’s] state partners,”

whose efforts “on establishing fair access rules” were “particularly instructive” to the

Commission’s own policymaking). The FCC thus relies on the states to serve as laboratories for

experimentation with pole attachment policy; applying the federal rules to a self-regulating state

like Kentucky would frustrate that federal policy.

II. THE ORDINANCE IS A LEGITIMATE EXERCISE OF LOUISVILLE’S

MUNICIPAL RIGHTS-OF-WAY MANAGEMENT AUTHORITY.

In addition to allowing states room to regulate pole attachments, federal law also

“specifically recognizes” local government’s “authority . . . to manage public rights-of-way.”

Implementation of the Local Competition Provisions in the Telecomms. Act of 1996, 11 FCC

Rcd. 15,499, 16,073 ¶ 1155 (1996) (“Local Competition Order”) (citing 47 U.S.C. § 253(c)),

vacated on other grounds by Iowa Utils. Bd. v. FCC, 219 F.3d 744 (8th Cir. 2000), aff’d in part,

rev’d in part sub nom. Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467 (2002), and vacated in part

on other grounds by Iowa Utils. Bd. v. FCC, 301 F.3d 957 (8th Cir. 2002). When the FCC

updated its pole attachment rules in 2011, it explicitly was “cognizant of the authority that local,

state and Tribal entities have over rights-of-way.” Implementation of Section 224 of the Act, 26

FCC Rcd. at 5380 (Statement of Commissioner Michael J. Copps). And it was aware that local

variations will arise from industry standards that influence the management of pole attachments.

See id. at 5246 ¶ 11 & n.29 (noting that in the Local Competition Order, 11 FCC Rcd. at 16,068-

69, ¶¶ 1147-48, the FCC found that “utility internal operating standards reflect regional and local


14

conditions as well individual needs and experiences of the utility”). Regulation of broadband

deployment is therefore best understood as a “partnership exercise,” Implementation of Section

224 of the Act, 26 FCC Rcd. at 5380, that involves the participation of private parties and all

levels of government—including local.

Kentucky law similarly maintains municipal authority over rights-of-way. The very

Kentucky statute upon which Plaintiff primarily relies preserves municipalities’ power to

manage their local rights-of-way. While the statute gives the PSC “exclusive jurisdiction over

the regulation of rates and service of utilities,” it specifically is not “intended to limit or restrict

the police jurisdiction . . . or powers of cities or political subdivisions.” Ky. Rev. Stat. Ann.

§ 278.040(2). Louisville Metro’s adoption of the Ordinance falls squarely within the police

power explicitly reserved to municipalities by this latter provision of the PSC’s jurisdictional

statute.

Under Kentucky law, there is “[p]erhaps no principle . . . better settled than the one

giving to municipalities general control over the spaces within their boundaries occupied by

public ways.” City of Covington, 50 S.W.2d at 52. This power enables a municipality to

regulate the construction practices of entities that use the municipality’s rights-of-way. See City

of Shively v. Illinois Cen. R.R. Co., 349 S.W.2d 682, 686 (Ky. 1961) (noting that a city may

impose certain construction practices on railroads that use the public rights-of-way). Moreover,

Louisville Metro’s police powers—including its authority to manage activities in local rights-of-

way—must be “construed broadly in favor of the consolidated local government.” Ky. Rev. Stat.

Ann. § 67C.101(4). Louisville Metro thus has broad authority to “exercise any power and

perform any function within [its] boundaries that is in furtherance of a public purpose . . . and not

in conflict with a constitutional provision or statute.” Ky. Const. § 156b; see also Ky. Rev. Stat.


15

Ann. § 67C.101(2)(a) (granting a consolidated local government “all powers and privileges that

cities of the first class and their counties” may exercise); id. §§ 67.083, 83.410, 83.420 (granting

home rule authority to counties and cities of the first class, respectively). The Ordinance reflects

Louisville Metro’s exercise of its power to further the public purpose of mitigating the risk and

burden imposed by construction of local broadband facilities in public rights-of-way.

Notwithstanding Kentucky’s preservation of municipal police powers in the PSC statute,

Plaintiff claims that Louisville Metro’s authority over its rights-of-way conflicts with the PSC’s

“exclusive jurisdiction over the regulation of rates and service of utilities.” Ky. Rev. Stat. Ann.

§ 278.040(2). More specifically, Plaintiff argues that under Kentucky law, “attachments to a

utility’s poles are part of the ‘rates’ or ‘services’ of a utility within the meaning of KRS

278.040,” and so the Ordinance conflicts with the jurisdiction vested in the PSC. AT&T Mot. at

5. But Plaintiff’s argument misapprehends both the Ordinance and Kentucky law; in reality,

there is no conflict between them.

In a case on which Plaintiff primarily relies, Kentucky CATV Ass’n v. Volz, 675 S.W.2d

393, 395 (Ky. Ct. App. 1983), the Kentucky Court of Appeals found that the electric utilities’

provision of attachment space on their poles is a regulated “service” within the meaning of the

PSC’s jurisdictional statute. But the Ordinance does not regulate the utility’s provision of

attachment space. It instead regulates the construction activities that all attachers must perform

to complete the make-ready work necessary to facilitate network construction in Louisville

Metro’s public rights-of-way. This falls within Louisville Metro’s authority to “control the

manner whereby a utility may occupy its public streets” with its facilities. Benzinger v. Union

Light, Heat & Power Co., 170 S.W.2d 38, 40 (Ky. 1943) (holding that a city could require an

electric utility to place its wires underground and remove poles from along its streets without


16

intruding on the PSC’s jurisdiction over utility services). Louisville Metro has specified the

manner in which multi-party network construction is to proceed to limit the burden imposed

along the affected rights-of-way. Such coordination of construction falls outside the PSC’s

purview, as Louisville Metro has the right to manage activities involved in broadband

deployment “with reference to [the] burdening [of] its streets or public ways.” Id. at 42.

In addition to regulating within an area of local responsibility, the Ordinance respects the

regulatory actions of the Kentucky PSC. Under Kentucky law, the “true test” for whether local

authority survives a claim of state preemption “is the absence of conflict.” Lexington Fayette

Cty. Food & Beverage Ass’n v. Lexington-Fayette Urban Cty. Gov’t, 131 S.W.3d 745, 750 (Ky.

2004). The “mere presence of the state” in an area of regulation does “not automatically

eliminate local authority to enact appropriate regulations,” id., and it does not do so here.

Beyond mere incantation of the word “conflict,” Plaintiff does not articulate any way in which

the Ordinance actually conflicts with Kentucky public utility law. Plaintiff does not, for

example, claim that Kentucky law adopts make-ready procedures inconsistent with those adopted

by Louisville Metro; tellingly, it only makes such claims with regard to the federal rules that

Kentucky has displaced through “reverse preemption.” See AT&T Mot. at 12. Attachers often

enter into negotiated agreements addressing how the entities will sequence and organize their

make-ready construction work, which undermines any claim that PSC regulation occupies the

field with respect to construction activities in public rights-of-way. Similarly, Plaintiff identifies

no “comprehensive system of legislation on the same subject embodied in a general state statute”

that renders municipal oversight of local streets and sidewalks impliedly preempted. Lexington

Fayette Cty. Food & Beverage Ass’n, 131 S.W.3d at 751. Nor could it do so; the Kentucky

Revised Statutes contain no such scheme.


17

The Ordinance is akin to long-standing parts of the Louisville Metro Code that streamline

underground multi-party construction in the public rights-of-way—a variation on the dig once

policies discussed above. For instance, when two or more applicants for conduits seek to occupy

a common trench in any portion of a street or alley, those applicants “shall carry on work of

construction at such points as nearly at the same time as may be directed by the [Louisville

Metro Department of Public Works and Assets] so as to disturb the street, alley, or other public

place at such point to the least degree possible.” Louisville-Jefferson County Metro Gov’t Code

§ 53.08 (2007). Applicants that fail to do so “waive[] any right to such trench, space, or

conduit.” Id. Applicants are also required to “coordinate” their activities “to minimize the

disruption to the public caused by work being done on a street, alley, or public place.” Id. The

same Department of Public Works and Assets directs when construction work is to be done “by

two or more applicants for conduits on the same street, alley, or public place.” Id. § 53.09. We

are not aware of any suggestion that these dig once provisions interfere with the Kentucky PSC’s

jurisdiction over utility services. If Plaintiff’s preemption arguments were taken seriously,

however, these noncontroversial rules seemingly would be unenforceable.

Louisville Metro’s Ordinance specifies how new and existing attachers to utility poles are

to carry out the activities of make-ready construction to similarly minimize the disruption to the

public caused by work being done along a street, sidewalk, or other public way. Like

Louisville’s dig once provisions, the Ordinance streamlines construction work in a shared space.

Specifically, it relates to how construction activities inherent in the “partnership exercise” of

“major infrastructure build-outs” should be performed on public rights-of-way. Implementation

of Section 224 of the Act, 26 FCC Rcd. at 5380. The Ordinance thus reflects Louisville Metro’s

effort to manage the local effects of such build-outs.


18

In sum, the Ordinance targets a different problem from that addressed by the Kentucky

PSC’s “regulation of rates and service of utilities.” Ky. Rev. Stat. Ann. § 278.040(2). Again,

PSC regulation—like the federal regulation that it displaces—is directed at ensuring that pole

owners provide space to new attachers on reasonable terms. The Ordinance, in contrast,

addresses how all attachers are to complete the local make-ready construction work that must be

accomplished by the entire group. Privately negotiated agreements commonly set out special

make-ready processes that apply as between the attachers that are party to them, apart from

federal or state pole attachment rules. The Ordinance challenged here reflects a similar

municipal decision that a one-touch approach to make-ready will attract broadband investment

while minimizing the problems that aerial construction can cause for local residents and

businesses. That determination is an entirely suitable exercise of Louisville’s municipal

authority.

CONCLUSION

Louisville Metro’s Ordinance is a valid exercise of its police authority to manage its local

public rights-of-way. The Ordinance is consistent with federal and state law, and the court

should accordingly deny AT&T’s motion for summary judgment, grant Louisville Metro’s cross-

motion for summary judgment, and enter judgment in favor of the defendants.


/s/ Byron E. Leet

Byron E. Leet

[email protected]

Brittany L. Hampton

[email protected]




Telephone: (502) 562-7354

Facsimile: (502) 589-0309


19

61549560.1

and





1919 M Street, NW, Eighth Floor


Telephone: (202) 730-1300

Facsimile: (202) 730-1301


Counsel for Amicus Curiae Google Fiber Inc.




counsel of record.

/s/ Byron E. Leet

Byron E. Leet





LOUISVILLE DIVISION


LLC,

Plaintiff,

v.







PUBLIC WORKS,

Defendants.



ORDER GRANTING GOOGLE FIBER INC.’S MOTION FOR LEAVE TO FILE

A BRIEF AMICUS CURIAE IN OPPOSITION TO AT&T’S MOTION FOR SUMMARY

JUDGMENT AND IN SUPPORT OF LOUISVILLE METRO’S


Upon the motion of Google Fiber Inc. for leave to file a brief amicus curiae in opposition

to AT&T’s motion for summary judgment and in support of Louisville Metro’s cross-motion for

summary judgment, and the court being sufficiently advised,

IT IS HEREBY ORDERED that Google Fiber Inc.’s motion is hereby GRANTED.

Done, this __ day of _________, 2016.


2

Tendered By:

/s/ Byron E. Leet

Byron E. Leet

[email protected]

Brittany L. Hampton

[email protected]

Wyatt, Tarrant & Combs, LLP



Telephone: (502) 562-7354

Facsimile: (502) 589-0309


and







Telephone: (202) 730-1300

Facsimile: (202) 730-1301



Inc.

61549567.1
