Enlarge / Bardstown Road in Louisville, Kentucky.Scott Smithson
reader comments 54
Share this story
Charter Communications has sued the local government in Louisville and Jefferson County, Kentucky, in order to stop a new ordinance that gives Google Fiber easier access to utility poles.
Charter’s complaint in US District Court in Louisville on Friday (full text) is similar to one filed earlier by AT&T. Like AT&T before it, Charter wants to stop Louisville Metro’s One Touch Make Ready ordinance that lets new entrants like Google Fiber make all of the necessary wire adjustments on utility poles instead of having to wait for incumbent providers to send work crews to move their own wires.
Charter alleges that the ordinance violates its Fifth Amendment property rights and could cause service outages for its customers if Google Fiber’s installers make mistakes.
Charter, the second biggest cable company in the US, is also mad that both AT&T and Google Fiber face less onerous restrictions in their TV franchise agreements than it does.
Charter claims the differential treatment violates its First Amendment right to “speak” as a cable TV provider but did not point to any specific “speech” that has been suppressed.
Charter began operating in Louisville earlier this year when it acquired Time Warner Cable (TWC), the owner of Insight Communications’ operations in Kentucky.
Charter is providing service under the terms of a franchise agreement with Louisville that expired in 2010 and says Louisville has refused to rewrite the deal to make it less burdensome.
It isn’t uncommon for cities and towns to give less strict franchise agreements to new entrants than to incumbents, which have advantages over newcomers because they built out to customers first. While Charter argues that the disparity in Louisville violates its First Amendment speech rights, it doesn’t actually claim that it has been prevented from making any speech.
After all, Louisville’s rules don’t prevent Charter from offering cable television channels.
But the different rules in each franchise agreement make it “less burdensome and expensive for [Charter’s] competitors to speak in Louisville,” violating the principle that “the government may not favor one similarly situated member of the press or other speaker over another without special justification,” Charter argued.
The “burdensome regulatory treatment” faced by Charter impairs its “ability to speak relative to Google’s and AT&T’s ability to speak,” the complaint said.
Charter’s claim that it is entitled to First Amendment speech protections “free from discriminatory and unwarranted interference by any government entity” derives from a 1994 Supreme Court case involving Turner Broadcasting System and the Federal Communications Commission.
The precedent isn’t a slam dunk for Charter, though.
It centered on “must carry” rules that force cable television providers to carry broadband stations.
The court recognized cable TV providers’ status as “speakers” under the First Amendment but in a subsequent case ruled that they must carry provisions that are consistent with the First Amendment.
Charter listed numerous “disparate regulatory burdens” it faces in Louisville, including requirements to provide three local TV channels and pay for construction of public access studios; respond to repair and maintenance requests and complaints within 24 hours; and provide credits or rebates to compensate subscribers for service interruptions.
AT&T and Google Fiber don’t face these obligations, Charter’s complaint said.
Google Fiber pole access challenged
Charter’s challenge to the One Touch Make Ready ordinance alleges a violation of Fifth Amendment property rights and state utility laws.
The Louisville ordinance gives Google Fiber “a government-sanctioned license physically to invade, take possession of, move, and interfere with [Charter’s] property,” the complaint said. While Charter owns its wires, the poles are owned by AT&T and the Louisville Gas & Electric Company.
One Touch Make Ready ordinances are so named because they allow one company to perform all of the “make ready” work on utility poles in a single visit instead of requiring each entity to move its own wires to make way for new ones. Google Fiber has pushed for One Touch Make Ready ordinances in multiple cities, arguing that incumbent providers cause unreasonable delays in access to utility poles.
Nashville, Tennessee, followed in Louisville’s footsteps by passing a One Touch ordinance last month, and AT&T sued to stop it only two days later.
Google Fiber has begun offering service in parts of Nashville, but the company says it hasn’t been able to deploy more quickly because of pole access delays.
Google Fiber has not yet committed to offering service in Louisville despite receiving a franchise agreement.
Charter argues that Louisville Metro’s ordinance is preempted by the Kentucky Public Service Commission’s authority over pole attachments. While One Touch Make Ready could bring Google Fiber to customers sooner, Charter argues that its own subscribers could lose service if Google Fiber installers mess up.
Companies attaching new wires are required to indemnify pole owners for damages caused under One Touch Make Ready but are not required to indemnify third-party attachers like Charter, the complaint said.
Google Fiber doesn’t have to provide advance notice before moving Charter’s wires unless Google Fiber believes the work would likely cause a customer outage, Charter said. “It is unclear how a new attacher could reliably make this determination without consulting the third party to understand the likely effect of its work on the third party’s network,” Charter said.
“Where it has not provided advance notice, the new attacher must give notice that it has relocated or altered a pre-existing third party user’s attachments within 30 days after performing that work,” Charter also wrote. “The pre-existing third party attacher is then given only 14 days to inspect the relocation or alteration of its facilities by the provider and make any claim of damage or other complaint.”
Charter asked the court to declare the One Touch Make Ready ordinance invalid and to force Louisville to treat Charter, AT&T, and Google Fiber the same in franchise requirements.
Louisville Mayor Greg Fischer’s office does not comment on pending litigation, a spokesperson told Ars.
Disclosure: The Advance/Newhouse Partnership, which owns about 13 percent of Charter, is part of Advance Publications.
Advance Publications owns Condé Nast, which owns Ars Technica.
Enlarge / Bardstown Road in Louisville, Kentucky.Scott Smithson