Here is the new FCC filing in the Louisville OTMR lawsuit.
In my blog post on October 13, I said:
“In Louisville, if AT&T wins the federal preemption argument in their summary judgment motion, it will be good news for AT&T here in Nashville. Due to some nuances in Kentucky law that are different than in Tennessee, the converse is not necessarily true. If AT&T loses its summary judgment motion, it might be, but won’t necessarily be, bad news for them in the Nashville lawsuit.”
The FCC letter today addresses the nuance where Kentucky law is different than Tennessee law. In Part A of the Discussion, the FCC notes that “Kentucky has invoked the reverse-preemption provision…” Because of this, argues the FCC, there is no federal preemption of the Louisville OTMR ordinance.
Unlike Kentucky, Tennessee has not made any regulations in this area and so this reverse-preemption argument does not apply in Tennessee. This isn’t a random opinion I am asserting. In Council Director Jameson’s Analysis (see page 19) of OTMR, he said “Although states may ‘opt out’ and assume individual responsibility for their own poles by certifying with the FCC that it does so, Tennessee has yet to submit any such certification.” Kentucky opted out. Tennessee hasn’t.
Today’s filing by the FCC in Louisville: (1) is a good, solid restatement of the known preference of FCC leadership for faster high speed broadband deployment, including policies like OTMR; (2) it does not change any of the FCC regulations that some argue are at odds with OTMR (3) may well influence the Court in Louisville to rule against AT&T’s federal preemption argument in that case; (4) is good news for Google and bad news for AT&T; and (5) is not directly applicable to Tennessee because our state has never chosen to regulate pole attachments and therefore FCC regulations should apply here.
Everyone who is mostly interested in sound bites will gravitate to the extremes of “the FCC just totally validated OTMR in all imaginable ways” or “this means nothing.” Both positions are wrong. The precise points made by the FCC are that they prefer faster broadband deployment, including policies like OTMR and that federal preemption doesn’t apply in the Commonwealth of Kentucky. I assume AT&T would have preferred that the FCC keep its opinions to itself. But the specific FCC opinions stated in today’s filing will not resolve the legal disputes in Nashville.