Judge Backs AT&T, Comcast Nuisance Suit Against Google Fiber In Nashville

from the why-we-can't-have-nice-things dept

There's numerous methods incumbent ISPs use to keep broadband competition at bay, from buying protectionist state laws to a steady supply of revolving door regulators and lobbyists with a vested interest in protecting the status quo. This regulatory capture goes a long way toward explaining why Americans pay more money for slower broadband than most developed nations. Keeping this dysfunction intact despite a growing resentment from America's under-served and over-charged broadband consumers isn't easy, and has required decades of yeoman's work on the part of entrenched duopolies and their lobbyists.

Case in point: Google Fiber recently tried to build new fiber networks in a large number of cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process. As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) often slow things down even further by intentionally dragging their feet.

So in cities like Nashville and Louisville, Google Fiber and other competitors have pushed for so-called "one touch make ready" utility pole reform. These reforms let a licensed and insured contractor move any ISP's pole-mounted gear if necessary (usually a matter of inches), as long as the ISP is notified in advance and the contractor pays for any damages. Under these regulatory reforms, the pole attachment process can be reduced from six months or more to just a month or so -- dramatically speeding up fiber deployment. ISPs like Verizon (in part because Google Fiber isn't encroaching on their East Coast turf) have supported the changes.

But because this would accelerate competitor broadband deployments as well, incumbent ISPs like AT&T, Comcast and Charter Spectrum did what they do best: they filed nuisance lawsuits against both Nashville and Louisville -- claiming they'd exceeded their legal authority in updating the rules. The companies proclaim they're simply concerned about the potential damage to their lines (ignored is the fact that the contractors doing the work are often the same people employed by ISPs), but the lawsuits are driven by one thing: fear of competition.

In Louisville this tactic didn't work so well, with a Judge ruling that the city was perfectly within its legal rights to manage the city's utility poles. ISPs had claimed that these cities' authority was over-ridden by FCC rules, though even the FCC itself backed Google Fiber and the cities in this fight (obviously this position, like most pro-competitive policies, were reversed when Trump appointed Ajit Pai to head the FCC last fall).

In Nashville however those same ISPs last week scored a major victory on the news that a Judge has backed incumbent ISP claims that the city did not have jurisdiction over utility poles -- and that the policy change violates contract law. Google Fiber, for its part, says it's reviewing the ruling:

"We're reviewing today's court ruling to understand its potential impact on our build in Nashville," a Google spokesperson said. "We have made significant progress with new innovative deployment techniques in some areas of the city, but access to poles remains an important issue where underground deployment is not a possibility."

There's several reasons Google Fiber announced last fall that it was pivoting toward wireless/fiber hybrid deployments. One was the high cost and slow pace of fiber deployment, but another was the kind of legal and regulatory roadblocks being erected by the likes of AT&T, Charter and Comcast, who are utterly terrified at the faintest specter of competition disrupting their all-too-cozy markets. Google Fiber has managed to avoid some of these obstacles via technologies like microtrenching, but the incumbent ISP goal of slowing the rise of competition has proven successful overall.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Nov 2017 @ 12:24pm

    Everything Google does requires special privileges.

    Federal law trumps city law (though not common law, "Stephen T Stone").

    So TOO BAD! Google will just have to endure regulated to SAME conditions as all other corporations. BOO HOO.

    reply to this | link to this | view in chronology ]

    • icon
      An Onymous Coward (profile), 28 Nov 2017 @ 1:04pm

      Re: Everything Google does requires special privileges.

      Google is already subject to the same regulations. The existing ISPs are just pushing an anti-competitive agenda. They'd fight against any competitor, not just Google.

      reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 28 Nov 2017 @ 1:36pm

      Re: Everything Google does requires special privileges.

      So McDonalds can block a Taco Bell from opening by denying reasonable access to them to connect power lines?

      Do you ever wonder why your view never changes?
      Perhaps if you pull your head out of your ass you might notice that Google isn't always the devil, and allowing incumbent providers to block competition by denying them access to the infrastructure & dragging their feet?

      Same contractors touching the lines, any damages paid for... their complaints ring hollow.
      It was about being able to make them wait 6 months or more to run wire from pole 1 to pole 2 then 6 more months for pole 3 then 6 months for pole 4....

      Funny if AT&T & Comcast needed to fix things on each others poles, it doesn't take 6 months.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Nov 2017 @ 3:29pm

        Re: Re: Everything Google does requires special privileges.

        > So McDonalds can block a Taco Bell from opening by denying reasonable access to them to connect power lines?

        No, and that's not what happened in Nashville.

        The FCC has jurisdiction there, so the FCC would have to change the pole attachment rules. Alternatively, Tennessee would have to opt out of FCC jurisdiction.

        This FCC does not have jurisdiction in Louisville because Kentucky declined giving the FCC jurisdiction. Therefore, Louisville has jurisdiction.

        source: https://arstechnica.com/tech-policy/2017/11/att-and-comcast-win-lawsuit-they-filed-to-stall-google-f iber-in-nashville/

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 28 Nov 2017 @ 5:11pm

          Re: Re: Re: Everything Google does requires special privileges.

          Same contractors touching the lines, any damages paid for... their complaints ring hollow.
          It was about being able to make them wait 6 months or more to run wire from pole 1 to pole 2 then 6 more months for pole 3 then 6 months for pole 4....

          So trying to pass a simple rule change that ends an obviously clear attempt to block new competition is bad.
          So the FCC thinks that any new start up can survive the length of time the incumbents decide to take to move lines maybe a couple inches.

          This is the FCC working against the free market & shoring up monopolies.

          The current process isn't working, One Touch Make Ready with any damages coming out of the contractors pocket should be the law of the land.... but if anyone could put up lines consumers might have choice.

          reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 28 Nov 2017 @ 1:46pm

      Re: Everything Google does requires special privileges.

      Federal law trumps city law (though not common law, "Stephen T Stone").

      The hell, did I get called out for a comment that I didn’t even make? Am I in the Upside Down?

      reply to this | link to this | view in chronology ]

      • identicon
        pɹɐʍoƆ snoɯʎuou∀, 28 Nov 2017 @ 3:51pm

        Re: Re: Everything Google does requires special privileges.

        uʍop ǝpᴉsd∩ ǝɥʇ uᴉ Ǝɹ∀ no⅄ ˙ǝuoʇS ˙┴ uǝɥdǝʇS ˙sǝ⅄

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Nov 2017 @ 12:46pm

    "...endure regulated to SAME conditions ..."

    that doesnt sound correct - where these conditions present when the incumbents were given all this infrastructure on takpayers dime?

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 28 Nov 2017 @ 12:46pm

    Leases

    One thing municipalities might do is turn to right-of-way leases. The ISPs may own the poles, but the city or county usually owns the majority of the rights-of-way those poles sit on and leases access to it to the various utilities that need poles. They should look at the terms of those leases with an eye towards requirements for shared access that don't depend on local or state laws to enforce. If there aren't any suitable terms, the next time the lease comes up for renewal terms requiring utilities perform all actions needed for shared access within 30 days of the request (with penalties involving either the requesting party being able to perform the work themselves or the utility that failed to get things done losing it's lease) should be added and made non-negotiable. Then the FCC's out of the picture because it's remit doesn't extend to regulating the terms cities and counties must lease access to real estate under.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 8:05pm

      Re: Leases

      That's a great idea.

      I would also suggest that municipalities enact micro-trenching laws, making the value on owning poles much, much less.

      E.g. if you don't want to cooperate, we will enact laws that enable competitors to bypass you....

      reply to this | link to this | view in chronology ]

  • icon
    MyNameHere (profile), 28 Nov 2017 @ 12:51pm

    Google is getting away from Fiber because they figured out that they can't make money at it, certainly not at the same level as saving 25% tax by shipping the cash offshore as "licensing fees" and "services rendered" by Irish companies.

    5% return over a decade is nothing compared to 25% today.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Nov 2017 @ 1:36pm

    Let's say that I'm a real estate developer. I buy a large tract of land and build a residential neighborhood. After it's all built, the streets and sewer lines below them become property of the city (despite the fact that the city did not pay to build them) yet the telephone and cable lines laid down in the now-city-owned utility easement become the eternal property of those private companies instead of city property.

    Why is there such a stark difference in the eventual ownership -and control- of different types of privately-funded public infrastructure?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 1:53pm

      Re:

      Why is there such a stark difference in the eventual ownership -and control- of different types of privately-funded public infrastructure?

      Campaign contributions.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Nov 2017 @ 1:46pm

    and the judge received what in exchange for backing the incumbents? must have been substantial, i would have thought otherwise not worth his while.

    shame corrupt fuckers like this cant get called out and dismissed from the bench!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Nov 2017 @ 2:20pm

    You asked for it by laughing at the folks that told you it was coming because of your stance on regulation. Sucks to be a sucker!

    Keep those heads in the sand... it's working out great for the Big Telco's!

    What is worse most of you still don't even understand how you are reaping what you have sown! Keep laughing, hopefully it will provide you some small comfort in the days to come.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 28 Nov 2017 @ 2:54pm

      Re:

      And a completely de-regulated telco sector, that would be better?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Nov 2017 @ 7:55pm

        Re: Re:

        So that is what you got from that statement?

        If your only game is to regurgitate what your political leaders tell you to then you are obviously not able to think for yourself.

        Get your head out of the sand so you can stop choking on the dirt and have a little fresh air. Maybe you will be able to think clearly enough and figure out how you have ignorantly brought about what you "claim" to seek to prevent.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 28 Nov 2017 @ 8:36pm

          Re: Re: Re:

          So that is what you got from that statement?

          Considering how I have seen several anonymous commenters laughing at the mere idea of regulations being effective in any way whatsoever over the past few weeks…yes, that is what I parsed your statement to mean.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 3:17pm

      Re:

      Another content free post by mister chips. Keep sucking down those gallons and eventually you will be able to see god.

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 28 Nov 2017 @ 6:34pm

      Re:

      "You asked for it by laughing at the folks that told you it was coming because of your stance on regulation."

      This comment makes absolutely zero sense. You seem to have a very tenuous grasp on the concept of cause and effect.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Nov 2017 @ 7:58pm

        Re: Re:

        If I need to explain it too you then you might be the one with the tenuous grasp on things. It only makes sense when you have some!

        reply to this | link to this | view in chronology ]

  • icon
    Christopher (profile), 28 Nov 2017 @ 4:10pm

    Contract law is the interesting move here.

    "...t the city did not have jurisdiction over utility poles -- and that the policy change violates contract law. "

    This is how Robert Moses, and his authorities, were able to ensconce themselves in the state of New York and build, without any regard for what legislators or executive branches wanted.

    I think, however, the city still has eminent domain in its back pocket for extreme cases. Now's a good time to use it.

    -C

    reply to this | link to this | view in chronology ]


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