Case 3:16-cv-00124-TBR Document 56-2 Filed 10/06/16 Page 1 of 19 PageID #: 844

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

BELLSOUTH TELECOMMUNICATIONS,
LLC,

Electronically Filed

Plaintiff,
Case No. 3:16-cv-00124-TBR

v.
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; GREGORY E.
FISCHER, IN HIS OFFICIAL CAPACITY
AS MAYOR; AND VANESSA D. BURNS,
IN HER OFFICIAL CAPACITY AS
DIRECTOR OF THE DEPARTMENT OF
PUBLIC WORKS,
Defendants.

BRIEF OF AMICUS CURIAE GOOGLE FIBER INC. IN OPPOSITION

TO AT&TS MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF
LOUISVILLE METROS CROSS-MOTION FOR SUMMARY JUDGMENT
Amicus curiae Google Fiber Inc. (Google Fiber) submits this brief in opposition to the
motion for summary judgment of BellSouth Telecommunications, LLC (AT&T or Plaintiff)
and in support of the cross-motion for summary judgment of Louisville/Jefferson County Metro
Government (Louisville Metro).

Google Fibers experience constructing new broadband

networks across the country enables it to offer this Court a real-world perspective on how
municipal laws like Ordinance No. 021, Series 2016 (the Ordinance) reduce the disruptions to
public rights-of-way that inevitably accompany broadband deployment. This brief draws on
Google Fibers operational expertise to explain why the Ordinance is a legitimate exercise of
municipal authority over local rights-of-way that is consistent with federal and state law.

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INTEREST OF AMICUS CURIAE

Google Fiber provides high-speed Internet access, television, and Voice-over-InternetProtocol phone services to subscribers in cities across the country. Google Fiber currently serves
subscribers in eight metropolitan areas and seeks to expand to additional cities, potentially
including Louisville, Kentucky.
Deploying Google Fiber is a long-term investment. Google Fiber begins the process by
working closely with city leaders to review existing local infrastructure, both public and
privately owned, as well as applicable local laws, standards, and permitting capabilities. During
this city-specific review, Google Fiber considers how the current infrastructure could help to
support a new networkfor example, by using existing utility poles to provide an aerial route for
fiber. Experts then evaluate the real-world circumstances along the identified routes to fill in the
details necessary for a full network design. Once a design is in place, constructing the new
network begins.
As a result of its experience working with different municipalities to bring high-speed
broadband networks to new communities, Google Fiber is familiar with the variety of approaches
municipalities take to regulating construction in their rights-of-way.

Google Fiber is also

experienced with the interplay among federal, state, and municipal laws relating to utility pole
attachments. In this proceeding, Google Fiber seeks to assist this Court in understanding the
concerns of new entrants seeking to deploy high-speed broadband infrastructure and services
with minimal safety risk, disruption, and inconvenience to local communities.
INTRODUCTION AND SUMMARY OF ARGUMENT
Building a new network is complicated and involves many parties, including (for aerial
routes) the new entrant, utility pole owners (typically the electric utility or the historical
incumbent telephone company), service providers and other entities with existing attachments on
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the poles, and the local authorities that oversee activities in the public rights-of-way. Like any
construction in public rights-of-way, fiber deployment inevitably disrupts normal usage of roads
and sidewalks, increasing congestion and raising safety concerns.
The particular type of work involved in this case, make-ready construction, involves
the adjustment or rearrangement of existing wires that are attached to utility poles. Traditionally,
make-ready construction has involved an inefficient serial approach. Under that approach, each
existing attacher adjusts its own facilities to make room on the pole for the new attacher, and one
existing attacher follows another upon notification that the prior attacher has completed its move.
Each truckroll in the sequence of visits to the same utility pole may again impede traffic and
cause inconvenience and potentially dangerous conditions for the public.
Louisville Metros Ordinance facilitates multi-party construction work in its rights-ofway. In many cases there is no reason to expect that make-ready work would result in any
service outage whatsoever; the work involves simply moving an existing line up or down on a
pole to free up space, or adjusting the way the line is attached to the pole. In these cases, the
Ordinance allows a streamlined alternative to the traditional serial approach.

Under that

alternative process, a single construction crew, hired and paid for by the new attacher but preapproved by the pole owner, makes one trip to perform all necessary adjustments to ready the
pole. The Ordinance thus facilitates joint construction activities performed by all existing and
new pole attachers to minimize potentially dangerous and disruptive activities in Louisvilles
local rights-of-way.
Plaintiffs arguments for enjoining the Ordinance should be rejected.

Its federal

preemption argument ignores that the federal rules on which it relies do not apply in Louisville at
all: Kentucky has exercised its right under federal law to regulate the rates, terms, and conditions

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of pole attachments at the state level instead of having them be subject to federal pole attachment
regulations. See 47 U.S.C. 224(c). The Federal Communications Commission (FCC) has
acknowledged that Kentucky has taken the necessary steps to do this, see, e.g., Implementation
of Section 224 of the Act, 26 FCC Rcd. 5240, 5371 at Appendix C (2011), thus foreclosing
Plaintiffs argument that the Ordinance conflicts with federal pole attachment law.
The Ordinance is also consistent with state law. Kentucky law gives municipalities
control over the spaces within their boundaries occupied by public ways, City of Covington v.
Averbeck, 50 S.W.2d 50, 52 (Ky. 1932), while granting the Kentucky Public Service
Commission (PSC) exclusive jurisdiction over the regulation of rates and service of utilities.
Ky. Rev. Stat. Ann. 278.040(2). Here, Louisville Metro is addressing how attachers to a pole
carry out construction while they are in the public ways. Because the Ordinance goes no
farther than the local construction activities of attachersand does not contradict any policy of
the PSCthe Ordinance does not conflict with the PSCs jurisdiction over pole attachment
services offered by pole owners.
BACKGROUND
Google Fiber designs and constructs new broadband networks to deploy high-speed
broadband services to its customers. In many communities, the only practicable way to build a
new fiber-optic network requires stringing Google Fibers new cable along existing utility pole
lines. For such aerial deployments, Google Fiber strings hundreds or even thousands of miles of
fiber across thousands of utility poles to reach customers. Deployment of new fiber networks in
this way provides customers very fast connection speedsoften considerably faster than what
the existing cable and telephone networks offer.

Where Google Fiber introduces service,

existing providers invariably increase the quality or lower the cost of their own services to meet
the new competition.
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I.

NETWORK DEPLOYMENT CAUSES DISRUPTIONS AND SAFETY RISKS

THAT ARE OF LEGITIMATE CONCERN TO LOUISVILLE METRO.
The process of physically deploying new fiber is complicated, and necessarily involves

many parties. At a minimum, new entrants like Google Fiber must coordinate their activities
with utility pole owners, with other entities that have existing attachments on utility poles, and
with the local authorities that oversee all construction in public rights-of-way. Existing pole
attachments include cable and telephone lines, but may also include other lines used for
streetlights, traffic signals, antennas, school or municipal communications systems, and other
types of systems. Using their police power and traditional tools of municipal governance, cities
and towns balance a variety of interests related to these systems in the rights-of-way, including
protecting public safety and health, fostering the efficient administration of local permitting
processes, preserving the communitys ability to use streets and sidewalks without being
inconvenienced, and encouraging economic development. The tools employed by municipalities
include permitting, zoning, andas Louisville Metros Ordinance illustratesconstruction
standards and mandatory coordination of different users construction activities.
Before Google Fiber (or any provider) can attach a new line to a utility pole, makeready construction is often neededthat is, the existing attachments need to be adjusted or
rearranged to make space on the pole. See Implementation of Section 224 of the Act, 26 FCC
Rcd. at 5248 13 n.42 (Make-ready generally refers to the modification of poles or lines or
the installation of guys and anchors to accommodate additional facilities.). The make-ready
process, as it has traditionally been performed, often involves a serial approach to the work
required. Under that approach, each existing attacher adjusts its own facilities in a sequence set
out by the pole owner. The attacher may send one crew to perform its workor it may send
multiple crews to perform different kinds of work. Other attachers then do the same with their

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own facilities and their own employees or contractors, often resulting in many truckrolls.
Trucks may line the side of the road and block sidewalks on and off for months as the attachers
work in sequence. In Louisville and elsewhere, this type of process has caused public frustration
and complaint. See, e.g., An Ordinance Amending Chapter 116 of The Louisville Metro Code of
Ordinances Regarding Communication Services Franchises (Amendment by Substitution) (As
Amended) Before the Louisville Metro Council at 2:19:25 (Louisville Metro Govt Feb. 11,
2016) (February 11, 2016 Louisville Metro Council) (testimony of Councilman Kevin
Kramer), http://louisville.granicus.com/MediaPlayer.php?view_id=2&clip_id=4436 (noting that
council members have fielded complaints about folks who are needing to move things on utility
poles and how long it takes to get that done). Each truckroll may impede traffic, inconvenience
residents, and create a potentially dangerous environment that contributes to collisions and
pedestrian injuries, among other dangers. Indeed, in 2015 alone, utility or maintenance work
zones were a factor in 136 traffic collisions in Kentucky, including two fatal collisions.
COMMONWEALTH

OF

KENTUCKY,

TRAFFIC

COLLISION

FACTS

28

(2015

Report),

http://transportation.ky.gov/Highway-Safety/Documents/2015_KY_Traffic_Collision_Facts.pdf.
This serial approach leads to unnecessary disruptions and delays even when all of the
parties fully cooperate. [L]ack of coordination of existing attachers is a recurring issue for
pole attachments. Implementation of Section 224 of the Act, 26 FCC Rcd. at 5251 21. In
reality, moreover, existing attachers are not always eager to complete work that will enable rival
entrants to offer competitive services, and incumbent control of critical facilities is often
identified as an impediment to the deployment of new network technologies. See, e.g., id.
(noting the generalized problem of utility lack of timeliness from initial request through
completion, and pervasive and widespread problems of delays in survey work [and] delays in

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make-ready performance (footnotes omitted)); FEDERAL COMMUNICATIONS COMMISSION,

CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 111 (2010) (setting forth a broadband
providers view that the most significant obstacle to the deployment of fiber transport is [its]
inability to obtain access to pole attachments in a timely manner).
Thus, although industry standards suggest that each individual attachers part of serial
make-ready might be expected to take between thirty and sixty days to complete, outliers often
extend the overall timeline dramatically. To take one concrete example, an incumbent attacher
in one Google Fiber city currently takes an average of eighty-one days to complete just its own
phase of make-ready work. When this occurs, the cumulative impact under the serial approach is
severe. By the time all the attachers have done their work, it can ultimately take months or even
years to be ready to attach a new line to a pole. Preparing a single neighborhood route for
Google Fibers attachment routinely takes six months or more due to the delays built into the
serial process.
Furthermore, delays at the make-ready stage trickle down into later phases of
deployment. For example, lost time associated with serialized make-ready work has led to the
expiration of required municipal construction permits in some Google Fiber cities. Obtaining
renewals of those permits prolongs the process and creates additional cost and delay, not just for
the entity seeking the permits but also for the municipality overseeing permitting and other
administrative processes. Similarly, an existing attacher that fails to complete its round of makeready on a single pole in a timely fashion may affect a new attachers ability to attach lines to
other poles that are ready, because some pole owners require all make-ready in the entire work
area to be complete before any deployment may proceed.

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II.

THE ORDINANCE ADDRESSES ISSUES OF SAFETY AND DISRUPTION TO

THE COMMUNITY.
By adopting a climb once process, or one-touch make-ready, for Louisville Metros

rights-of-way, the Ordinance addresses problems associated with the serial make-ready
procedure and thereby helps improve safety and reduce community disruption. The Louisville
Metro Council considered that the Ordinance would reduc[e] inefficiencies and congestions on
[Louisville] streets. February 11, 2016 Louisville Metro Council at 2:16:34 (testimony of
Councilman Bill Hollander); see also An Ordinance Amending Chapter 116 Of The Louisville
Metro Code Of Ordinances Regarding Communication Services Franchises (Amendment By
Substitution) Before the Public Works, Bridges & Transportation Committee at 18:12 (Louisville
Metro Govt Feb. 2, 2016) (February 2, 2016 Louisville Metro Public Works Committee)
(testimony

of

Councilman

Bill

Hollander),

http://louisville.granicus.com/MediaPlayer.php?view_id=2&clip_id=4421&meta_id=523828
(noting that the Ordinance would reduce disruption and inconveniences on [Louisville]
streets). The Ordinance encourages new and existing attachers to coordinate construction
activities into one truckroll that enables crews to be in and out of the neighborhoods [with
the] least disruption. February 2, 2016 Louisville Metro Public Works Committee at 17:43
(testimony of Ted Smith, Office of Civic Innovation).
The Ordinance establishes that when make-ready construction does not threaten a service
outage, a single construction crew can perform the adjustments that are necessary to make the
pole ready. The pole ownerwhether it is an electric utility, a telecommunications company, or
another entitycontrols which crews are pre-approved to do this work. Using a single crew
greatly reduces the number of trips needed to complete work on a given pole as compared to the
serial approach, which in turn reduces many of the other negative effects of construction,

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including traffic congestion, blocked sidewalks, increased wear on roads, and even the number of
times workers need to climb utility poles. The community benefits from less disruption to the
flow of traffic and from fewer bouts of construction affecting roads and sidewalks. Safety is
improved by having all work done to a pole in a coordinated fashion. Finally, by simplifying the
process of coordinating construction between a new provider and existing attachers, the
Ordinance reduces the number of days needed to complete make-ready work, which speeds
deploymentmaking the community more attractive for broadband investment.
One-touch make-ready policies have correctly been likened to dig once policies, the
no-brainer actions that decrease the disruption and cost associated with underground
deployment of new broadband networks while speeding deployment by mandat[ing] laying
conduit and/or fiber optic cables when undertaking capital projects such as road construction.
See One Touch Make-Ready Policies: The Dig Once of Pole Attachments, NEXT CENTURY
CITIES (Jan. 6, 2016), http://nextcenturycities.org/2016/01/06/one-touch-make-ready-policiesthe-dig-once-of-pole-attachments/.

Municipalities routinely adopt dig once ordinances and

variations requiring coordination of excavation in their rights-of-way. See, e.g., Houston, Tex.,
Municipal Code 40-145 (requiring mandatory joint trenching and prohibiting re-excavation
within a certain amount of time); Santa Monica, Cal., Municipal Code 7.06.300(a) (requiring
that work be designed and scheduled so as to coordinate . . . with other persons installing,
constructing, or maintaining facilities in the [public rights-of-way] and with the City). Like
these dig once policies, the climb once provisions of the Ordinance reduce the need for team
after team of construction workers to cause inconvenient, unsightly, and possibly dangerous
disruptions along roadways and sidewalks and set a baseline for multi-party construction
activities in the local rights-of-way.

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ARGUMENT
Municipal one-touch make-ready policies like the Ordinance complement rather than
conflict with federal and state laws governing pole owners provision of space for attachments.
Plaintiff argues that the Ordinance is preempted by federal pole attachment rulesignoring that
those rules are inapplicable in Kentuckyand also by state law that purportedly gives the
Kentucky PSC exclusive jurisdiction over pole attachments. These arguments are internally
inconsistent and wrong.
The Ordinance is a valid exercise of Louisville Metros unquestioned authority to manage
construction activities in public rights-of-way, establishing a streamlined make-ready process
that will enhance public safety while reducing disturbance and congestion. At the same time, the
process protects pole owners property and existing attachers service lines by mandating the use
of experienced crews that the pole owners have pre-approved. Finally, Louisville Metro has
exercised its municipal authority in a way that is not merely consistent with, but actually
anticipated by, both federal and state law.
I.

THE FEDERAL POLE ATTACHMENT RULES DO NOT APPLY BECAUSE

KENTUCKY HAS EXERCISED ITS RIGHT TO REVERSE PREEMPT THEM.
Plaintiffs federal preemption argument overlooks a fundamental aspect of the federal

pole attachment rules: those rules do not apply where a state has exercised its right not to rely on
federal pole attachment regulations, but instead to regulate at the state level the rates, terms, and
conditions under which pole owners offer attachments. Such an assertion of state authority is
often referred to as reverse preemption, and Kentucky has unquestionably done so. Plaintiffs
federal preemption claim cannot survive Kentuckys reverse preemption of the federal pole
attachment rules and the FCCs explicit acknowledgement of the states action.

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In 1978, Congress adopted the federal Pole Attachment Act authorizing the FCC to
regulate the rates, terms, and conditions for pole attachments on just and reasonable terms.
47 U.S.C. 224(b)(1). Although electric utilities and telephone companies had long shared
ownership and costs of utility poles, the emergence of cable television in the 1970s increased
demand for access to those poles to build those new networks.

Congress concluded that

regulation was required as a result of pole owners efforts to prevent the new cable companies
from accessing poles, to compel unreasonable terms of access, and to charge monopoly rents for
that access. Am. Elec. Power Serv. Corp. v. FCC, 708 F.3d 183, 185 (D.C. Cir. 2013) (quoting
Natl Cable & Telecomms. Assn v. Gulf Power Co., 534 U.S. 327, 330 (2002)); see also H.R.
Rep. No. 95-721, pt. 2, at 3 (1977) (noting testimony by cable executives that utilities could
force them into virtual contracts of adhesion on a take-it-or-leave-it basis in light of the
cable industrys total dependen[ce] on telephone and power company poles).
But the regulation that Congress authorized the FCC to adopt was limited in scope. Both
Congress and the FCC stated that the new federal regulation would supplement current and
future state and local regulation of pole attachments. See S. Rep. No. 95-580, at 16-18 (1977),
reprinted in 1978 U.S.C.C.A.N. 109, 124 (observing that pole attachments are essentially local
in nature); Adoption of Rules for the Regulation of Cable Television Pole Attachments, 68
F.C.C.2d 3, 4 4 (1978) (citing S. Rep. No. 95-580 and noting that attachments are ideally a
matter for state or local regulation).

Consistent with these statements, the federal Pole

Attachment Act expressly provides that states may opt entirely out of federal regulation of pole
attachments. Specifically, Section 224 provides: Nothing in this section shall be construed to
apply to . . . pole attachments in any case where such matters are regulated by a State. 47
U.S.C. 224(c)(1).

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The Pole Attachment Act further sets forth that a state may exercise this right to opt out
by certifying to the FCC that it regulates the rates, terms, and conditions of pole attachments, and
that it considers the interests of subscribers and utility customers in doing so. See id. 224(c)(2).
The state must also adopt rules and regulations pursuant to its exercise of that authority. See id.
224(c)(3)(A). So long as the state takes timely action on any subsequent pole attachment
complaints, see id. 224(c)(3)(B), that states certification that it meets these requirements
forecloses the application of the federal pole attachment rules within the state.

See

Implementation of Section 224 of the Act, 26 FCC Rcd. at 533132 210 & n.636 (noting that
the Commission has no jurisdiction under section 224 to regulate pole attachment matters in
states that have certified that they regulate pole attachments).
The FCC acknowledges that Kentucky, like 19 other states and the District of Columbia,
has taken the necessary steps to reverse preempt the FCCs pole attachment rules. See id. at
5371 at Appendix C; States That Have Certified That They Regulate Pole Attachments, 25 FCC
Rcd. 5541 (2010). Kentuckys FCC-recognized certification that it regulates pole attachments,
together with its promulgation of the requisite regulations, 807 Ky. Admin. Regs. 5:006 22,
flatly forecloses Plaintiffs claim that the Ordinance conflicts with and is preempted by the
FCCs pole attachment rules. See MCI Telecomms. Corp. v. N.Y. Tel. Co., 134 F. Supp. 2d 490,
504 (N.D.N.Y. 2001) (holding that the New York Public Service Commission is neither bound
by [an FCC pole attachment ruling] nor does its decision [contrary to that ruling] violate section
224 because New York has exercised its right to reverse preempt the federal pole attachment
rules); Implementation of Section 224 of the Act, 26 FCC Rcd. at 5243 7 (noting that the FCC
retains jurisdiction over pole attachments only in states that do not . . . certify [that they regulate
pole attachments]).

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Congresss determination that the states should be allowed to opt out of federal pole
attachment regulations serves important policy purposes.

As the FCC has explained, the

state[s] experience with regulation of pole attachments provides an invaluable opportunity for
the Commission to observe what works and what does not work to achieve policy goals. Id.;
see also id. (explaining that the federal rules buil[t] on the work of [the FCCs] state partners,
whose efforts on establishing fair access rules were particularly instructive to the
Commissions own policymaking). The FCC thus relies on the states to serve as laboratories for
experimentation with pole attachment policy; applying the federal rules to a self-regulating state
like Kentucky would frustrate that federal policy.
II.

THE ORDINANCE IS A LEGITIMATE EXERCISE OF LOUISVILLES

MUNICIPAL RIGHTS-OF-WAY MANAGEMENT AUTHORITY.
In addition to allowing states room to regulate pole attachments, federal law also

specifically recognizes local governments authority . . . to manage public rights-of-way.

Implementation of the Local Competition Provisions in the Telecomms. Act of 1996, 11 FCC
Rcd. 15,499, 16,073 1155 (1996) (Local Competition Order) (citing 47 U.S.C. 253(c)),
vacated on other grounds by Iowa Utils. Bd. v. FCC, 219 F.3d 744 (8th Cir. 2000), affd in part,
revd in part sub nom. Verizon Commcns, Inc. v. FCC, 535 U.S. 467 (2002), and vacated in part
on other grounds by Iowa Utils. Bd. v. FCC, 301 F.3d 957 (8th Cir. 2002). When the FCC
updated its pole attachment rules in 2011, it explicitly was cognizant of the authority that local,
state and Tribal entities have over rights-of-way. Implementation of Section 224 of the Act, 26
FCC Rcd. at 5380 (Statement of Commissioner Michael J. Copps). And it was aware that local
variations will arise from industry standards that influence the management of pole attachments.
See id. at 5246 11 & n.29 (noting that in the Local Competition Order, 11 FCC Rcd. at 16,06869, 1147-48, the FCC found that utility internal operating standards reflect regional and local

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conditions as well individual needs and experiences of the utility). Regulation of broadband
deployment is therefore best understood as a partnership exercise, Implementation of Section
224 of the Act, 26 FCC Rcd. at 5380, that involves the participation of private parties and all
levels of governmentincluding local.
Kentucky law similarly maintains municipal authority over rights-of-way. The very
Kentucky statute upon which Plaintiff primarily relies preserves municipalities power to
manage their local rights-of-way. While the statute gives the PSC exclusive jurisdiction over
the regulation of rates and service of utilities, it specifically is not intended to limit or restrict
the police jurisdiction . . . or powers of cities or political subdivisions. Ky. Rev. Stat. Ann.
278.040(2). Louisville Metros adoption of the Ordinance falls squarely within the police
power explicitly reserved to municipalities by this latter provision of the PSCs jurisdictional
statute.
Under Kentucky law, there is [p]erhaps no principle . . . better settled than the one
giving to municipalities general control over the spaces within their boundaries occupied by
public ways. City of Covington, 50 S.W.2d at 52. This power enables a municipality to
regulate the construction practices of entities that use the municipalitys rights-of-way. See City
of Shively v. Illinois Cen. R.R. Co., 349 S.W.2d 682, 686 (Ky. 1961) (noting that a city may
impose certain construction practices on railroads that use the public rights-of-way). Moreover,
Louisville Metros police powersincluding its authority to manage activities in local rights-ofwaymust be construed broadly in favor of the consolidated local government. Ky. Rev. Stat.
Ann. 67C.101(4). Louisville Metro thus has broad authority to exercise any power and
perform any function within [its] boundaries that is in furtherance of a public purpose . . . and not
in conflict with a constitutional provision or statute. Ky. Const. 156b; see also Ky. Rev. Stat.

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Ann. 67C.101(2)(a) (granting a consolidated local government all powers and privileges that
cities of the first class and their counties may exercise); id. 67.083, 83.410, 83.420 (granting
home rule authority to counties and cities of the first class, respectively). The Ordinance reflects
Louisville Metros exercise of its power to further the public purpose of mitigating the risk and
burden imposed by construction of local broadband facilities in public rights-of-way.
Notwithstanding Kentuckys preservation of municipal police powers in the PSC statute,
Plaintiff claims that Louisville Metros authority over its rights-of-way conflicts with the PSCs
exclusive jurisdiction over the regulation of rates and service of utilities. Ky. Rev. Stat. Ann.
278.040(2). More specifically, Plaintiff argues that under Kentucky law, attachments to a
utilitys poles are part of the rates or services of a utility within the meaning of KRS
278.040, and so the Ordinance conflicts with the jurisdiction vested in the PSC. AT&T Mot. at
5. But Plaintiffs argument misapprehends both the Ordinance and Kentucky law; in reality,
there is no conflict between them.
In a case on which Plaintiff primarily relies, Kentucky CATV Assn v. Volz, 675 S.W.2d
393, 395 (Ky. Ct. App. 1983), the Kentucky Court of Appeals found that the electric utilities
provision of attachment space on their poles is a regulated service within the meaning of the
PSCs jurisdictional statute. But the Ordinance does not regulate the utilitys provision of
attachment space. It instead regulates the construction activities that all attachers must perform
to complete the make-ready work necessary to facilitate network construction in Louisville
Metros public rights-of-way. This falls within Louisville Metros authority to control the
manner whereby a utility may occupy its public streets with its facilities. Benzinger v. Union
Light, Heat & Power Co., 170 S.W.2d 38, 40 (Ky. 1943) (holding that a city could require an
electric utility to place its wires underground and remove poles from along its streets without

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intruding on the PSCs jurisdiction over utility services). Louisville Metro has specified the
manner in which multi-party network construction is to proceed to limit the burden imposed
along the affected rights-of-way. Such coordination of construction falls outside the PSCs
purview, as Louisville Metro has the right to manage activities involved in broadband
deployment with reference to [the] burdening [of] its streets or public ways. Id. at 42.
In addition to regulating within an area of local responsibility, the Ordinance respects the
regulatory actions of the Kentucky PSC. Under Kentucky law, the true test for whether local
authority survives a claim of state preemption is the absence of conflict. Lexington Fayette
Cty. Food & Beverage Assn v. Lexington-Fayette Urban Cty. Govt, 131 S.W.3d 745, 750 (Ky.
2004). The mere presence of the state in an area of regulation does not automatically
eliminate local authority to enact appropriate regulations, id., and it does not do so here.
Beyond mere incantation of the word conflict, Plaintiff does not articulate any way in which
the Ordinance actually conflicts with Kentucky public utility law.

Plaintiff does not, for

example, claim that Kentucky law adopts make-ready procedures inconsistent with those adopted
by Louisville Metro; tellingly, it only makes such claims with regard to the federal rules that
Kentucky has displaced through reverse preemption. See AT&T Mot. at 12. Attachers often
enter into negotiated agreements addressing how the entities will sequence and organize their
make-ready construction work, which undermines any claim that PSC regulation occupies the
field with respect to construction activities in public rights-of-way. Similarly, Plaintiff identifies
no comprehensive system of legislation on the same subject embodied in a general state statute
that renders municipal oversight of local streets and sidewalks impliedly preempted. Lexington
Fayette Cty. Food & Beverage Assn, 131 S.W.3d at 751. Nor could it do so; the Kentucky
Revised Statutes contain no such scheme.

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The Ordinance is akin to long-standing parts of the Louisville Metro Code that streamline
underground multi-party construction in the public rights-of-waya variation on the dig once
policies discussed above. For instance, when two or more applicants for conduits seek to occupy
a common trench in any portion of a street or alley, those applicants shall carry on work of
construction at such points as nearly at the same time as may be directed by the [Louisville
Metro Department of Public Works and Assets] so as to disturb the street, alley, or other public
place at such point to the least degree possible. Louisville-Jefferson County Metro Govt Code
53.08 (2007). Applicants that fail to do so waive[] any right to such trench, space, or
conduit. Id. Applicants are also required to coordinate their activities to minimize the
disruption to the public caused by work being done on a street, alley, or public place. Id. The
same Department of Public Works and Assets directs when construction work is to be done by
two or more applicants for conduits on the same street, alley, or public place. Id. 53.09. We
are not aware of any suggestion that these dig once provisions interfere with the Kentucky PSCs
jurisdiction over utility services.

If Plaintiffs preemption arguments were taken seriously,

however, these noncontroversial rules seemingly would be unenforceable.

Louisville Metros Ordinance specifies how new and existing attachers to utility poles are
to carry out the activities of make-ready construction to similarly minimize the disruption to the
public caused by work being done along a street, sidewalk, or other public way.

Like

Louisvilles dig once provisions, the Ordinance streamlines construction work in a shared space.
Specifically, it relates to how construction activities inherent in the partnership exercise of
major infrastructure build-outs should be performed on public rights-of-way. Implementation
of Section 224 of the Act, 26 FCC Rcd. at 5380. The Ordinance thus reflects Louisville Metros
effort to manage the local effects of such build-outs.

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Case 3:16-cv-00124-TBR Document 56-2 Filed 10/06/16 Page 18 of 19 PageID #: 861

In sum, the Ordinance targets a different problem from that addressed by the Kentucky
PSCs regulation of rates and service of utilities. Ky. Rev. Stat. Ann. 278.040(2). Again,
PSC regulationlike the federal regulation that it displacesis directed at ensuring that pole
owners provide space to new attachers on reasonable terms.

The Ordinance, in contrast,

addresses how all attachers are to complete the local make-ready construction work that must be
accomplished by the entire group. Privately negotiated agreements commonly set out special
make-ready processes that apply as between the attachers that are party to them, apart from
federal or state pole attachment rules.

The Ordinance challenged here reflects a similar

municipal decision that a one-touch approach to make-ready will attract broadband investment
while minimizing the problems that aerial construction can cause for local residents and
businesses.

That determination is an entirely suitable exercise of Louisvilles municipal

authority.
CONCLUSION
Louisville Metros Ordinance is a valid exercise of its police authority to manage its local
public rights-of-way. The Ordinance is consistent with federal and state law, and the court
should accordingly deny AT&Ts motion for summary judgment, grant Louisville Metros crossmotion for summary judgment, and enter judgment in favor of the defendants.
Respectfully submitted,
/s/ Byron E. Leet
Byron E. Leet
bleet@wyattfirm.com
Brittany L. Hampton
bbuzick@wyattfirm.com
Wyatt, Tarrant & Combs LLP
500 West Jefferson Street, Suite 2800
Louisville, KY 40202
Telephone: (502) 562-7354
Facsimile: (502) 589-0309

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Case 3:16-cv-00124-TBR Document 56-2 Filed 10/06/16 Page 19 of 19 PageID #: 862

and
Timothy J. Simeone (pro hac vice pending)
Kristine L. Devine (pro hac vice pending)
Elizabeth B. Uzelac (pro hac vice pending)
Harris, Wiltshire & Grannis LLP
1919 M Street, NW, Eighth Floor
Washington, DC 20036
Telephone: (202) 730-1300
Facsimile: (202) 730-1301
Email: tsimeone@hwglaw.com
Counsel for Amicus Curiae Google Fiber Inc.

CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2016, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, which will serve notice electronically on all
counsel of record.
/s/ Byron E. Leet
Byron E. Leet
Counsel for Google Fiber Inc.

61549560.1

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