Judge Kills AT&T's Attempt To Thwart Google Fiber Competition In Louisville

There's plenty of 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 an 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) has supported the changes.

But because this would speed up competitor broadband deployments as well, incumbent ISPs like AT&T and Charter did what they do best: they filed 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, things haven't worked out very well for AT&T, with a Judge recently declaring that the ISP's claim that Louisville had somehow exceeded its authority doesn't make any legal sense:

"AT&T claimed that Louisville has no jurisdiction under federal or state law to regulate pole attachments, an argument that the district court judge picked apart. AT&T argued that the rule referred to in-court documents as Ordinance No. 21 "impermissibly regulates the terms and conditions of pole attachments," but in doing so AT&T "narrowly characterize[d] Ordinance No. 21 as one that regulates pole attachments," the judge wrote. In reality, "the ordinance actually prescribes the 'method or manner of encumbering or placing burdens on' public rights-of-way," Hale wrote.

"Kentucky's state Public Service Commission has exclusive jurisdiction over regulation of rates and services of utilities, but cities are allowed to "regulate local utilities in every area except as to rates and service," the judge wrote.

That's good news for Louisville and people looking for beefed up broadband competition, but the damage is still done, and the delay still benefited AT&T (who'll likely appeal) all the same. Google Fiber wound up being forced to consider a pivot to wireless in Louisville after the company's efforts to deploy gigabit-capable fiber in the city took notably longer than expected. Thanks, in large part, to large incumbent ISPs like AT&T, which at one point publicly mocked Google Fiber's struggles while omitting its lawyers were a major reason for the delays in the first place.