Google Fiber dealt blow as judge nullifies Nashville’s One Touch Make Ready rule

utility pole
Nashville city leaders have encouraged Google Fiber, AT&T, Comcast and NES to reach an agreement that would be palatable to all parties.

Google Fiber has suffered another new setback in its effort to provide greater broadband choice in Nashville as a federal judge nullified the city's One Touch Make Ready (OTMR) ordinance.

U.S. District Judge Victoria Roberts wrote in her ruling that Metro Nashville "supplanted" Nashville Electric Service's (NES) authority managing its utility poles, which violates the Metro charter.

"The Ordinance conflicts with the exclusive authority granted to NES under the (Metro) Charter," Roberts wrote in the ruling, according to a report in The Tennessean. "This exclusive authority prevails over Metro Nashville's power to regulate public rights-of-way."

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Regardless, Google Fiber is continuing to install fiber in the city using new techniques like microtrenching that allows service providers to install fiber and related facilities in smaller ditches. The company is already offering service in various Nashville neighborhoods as well as multi-dwelling units (MTUs) including apartments and condominium complexes.

“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.”

AT&T, Comcast applaud decision

This decision is, not surprisingly, being applauded by AT&T and Comcast, the city’s two incumbent providers.

AT&T and Comcast sued the city last year, arguing that it did not have jurisdiction over utility poles and that the policy change violates contract law. These providers claim only the FCC oversees the pole policies.

The court said that while the OTMR ordinance overstepped local utility NES’ authority to regulate its poles, the judge did not provide a decision on that part of the suit because NES was not named in the suit. The deadline for AT&T and Comcast to add NES to the complaint is Dec. 6.

Today, AT&T owns about 20% of the poles in Davidson County, and NES owns the remaining 80%.

One of the key issues for AT&T was that Google Fiber’s proposal would not only rob its union network technicians of work, but it also could interrupt existing service if the service provider mistakenly damaged a line.

“We appreciate that the judge agrees with AT&T’s legal arguments that the ordinance is unlawful," said Joelle Phillips, president of AT&T Tennessee. "However, the ruling does not change AT&T’s willingness to work with Nashville Metro and others to streamline and improve the way facilities are deployed across the Nashville area.”

Comcast was also supportive of the judge’s ruling.

“We are pleased with the ruling and will continue to cooperate with new entrants, as we’ve always done, and support collaborative processes that safely accelerate broadband deployment in Nashville," said Sara Jo Walker, a Comcast spokeswoman.

Meanwhile, NES did not say whether it would increase its role in the suit.

"NES remains committed to helping provide the most efficient and effective deployment of broadband," said Holden Sheriff, a spokesman for NES. "Safety and reliability are NES’ primary interests in connection with pole attachments, and will continue to be our primary interests following this ruling."

Broadband expansion focus

Regardless of the new decision, Nashville city leaders have encouraged Google Fiber, AT&T, Comcast and NES to reach some agreement that would be palatable to all parties.

Bob Mendes, Nashville Metro Councilman who voted against the one-touch-make-ready ordinance, said in the Tennessean report that the goal is to expand the availability of broadband services throughout Nashville.

"There are legitimate concerns for the new providers, like Google Fiber, about how to get access on the incumbent providers' poles, and there are legitimate concerns by AT&T and Comcast," Mendes said. "Obviously, Metro wants to work through it all and get high-speed access to as many people as possible."

Although Google Fiber planned to start implementing OTMR by the end of the year, Martha Ivester, Google Fiber's Nashville manager, said that process was delayed by the lawsuits filed.  

Metro Councilman Anthony Davis, a supporter of OTMR, said while the court ruling is a setback, the positive part is Google Fiber’s advocacy has shaken up Nashville’s broadband market.  

"I want increased competition, more options and more neighborhoods getting faster speeds at lower costs," Davis said. "That's what we all want; it's just how to get there."

RELATED: Google Fiber wins Louisville, Kentucky, OTMR battle as court dismisses AT&T’s lawsuit

In February 2016, Louisville, Kentucky's OTMR ordinance was passed as a way to ease Google Fiber’s and other competitors’ movement into the Louisville broadband market by allowing them to move and install their own wiring on poles instead of waiting for AT&T and other service providers to conduct this work.

This process, which is known as make-ready, requires new entrants like Google Fiber to wait months for existing providers like AT&T and Comcast to move their lines themselves.