COMCAST OF NASHVILLE I, LLC,

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1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a AT&T TENNESSEE, v. Plaintiff, THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Defendants. Case No. 3:16-CV-2509 Judge Sharp Magistrate Judge Holmes COMCAST OF NASHVILLE I, LLC, v. Plaintiff, THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Defendants. Case No. 3:16-cv-2794 Judge Sharp Magistrate Judge Holmes DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF AT&T S COMPLAINT Nashville s public rights-of-way are a busy place. Vehicular traffic lanes run parallel to underground infrastructure, such as sewage and water lines, and aerial infrastructure, such as power and telecommunications lines. Necessary maintenance of these facilities requires lane closures that obstruct and disrupt pedestrian and vehicular traffic flow, making our already {N } Case 3:16-cv Document 24 Filed 11/14/16 Page 1 of 43 PageID #: 284

2 crowded roadways that much more difficult to navigate. 1 Rights-of-way construction isn t just an inconvenience; it presents serious safety risks. 2 While disruptions from rights-of-way construction cannot be completely eliminated, it is undisputable that streamlining these processes to reduce construction makes Nashville a safer and more drivable city. Recognizing this problem, the Metropolitan Government enacted an ordinance to protect the public s aerial rights-of-way on what are commonly referred to as telephone poles. In general terms, the ordinance permits a telecommunications provider seeking to add a line to an existing pole ( an attacher to adjust the existing lines of the pole owner and other telecommunications providers on that pole ( 3rd party attachers to accommodate the new line. This ordinance, commonly referred to as Climb Once or One Touch Make-Ready, significantly reduces the dangerous and disruptive process of requiring owners and 3rd party attachers to move their own lines. 1 In the coming years, Nashville is predicted to experience a sizable population increase, which will necessarily result in more traffic congestion. See David Plazas, NashvilleNext: A Future Roadmap, THE TENNESSEAN (Mar. 25, 2015, ( Traffic in Nashville and surrounding communities is already a headache even without all the visitors. It s the price of being in It City, but there will be a bigger price to pay if we don t invest in our road infrastructure and alternative transportation solutions. Remember that one million more people are expected to move to the region in the next 25 years. ; Congestion Management, NASHVILLE AREA METROPOLITAN PLANNING ORGANIZATION, (predicting how congestion will grow in the next 25 years; 2015 Urban Mobility Scorecard, TEXAS A&M TRANSPORTATION INSTITUTE (2015, (tracing several different measure of congestion; Tennessee Traffic Fatalities District Report, 2014 vs (Jul. 27, 2016, (noting that in Davidson County, there were 76 traffic fatalities in 2015 and 64 fatalities in Every year, Nashville drivers and construction workers die as the result of traffic accidents caused by construction. See, e.g., Work Zone Traffic Crashes in Tennessee, TN.GOV, (showing that in 2009, there were there were 2,360 total work zone crashes in Tennessee, including 107 in short-duration utility work zones; Vehicles Involved in Traffic Crashes in Tennessee by Body Code, TN.GOV, (showing that in 2008, there were 45,122 crashes in Tennessee involving utility trucks up to 10,000 lbs.; AT&T Worker Seriously Injured in Work Zone Accident in Franklin, WKRN NEWS (Apr. 13, 2016, {N } 2 Case 3:16-cv Document 24 Filed 11/14/16 Page 2 of 43 PageID #: 285

3 To truly appreciate the positive effects this ordinance should have on Nashville s traffic safety and efficiency, it is necessary to consider how rights-of-way governance functioned prior to Climb Once. Nashville was built on a limestone rock foundation, which means that its electrical and telecommunications lines are almost entirely aerial in nature. 3 Approximately 80% of the poles in Davidson County are owned by the Nashville Electric Service (NES while the other 20% are owned by Plaintiff AT&T. (Doc. #1, Compl. at 13. Regulation of attachments on these poles is largely controlled by inter-utility contracts between the pole owner and various attachers. 4 AT&T and NES, for example, currently operate under an attachment agreement that was signed in (Doc. #1, Compl. at 14; Doc. #1-1, Agreement Between AT&T and NES ( the 1958 Agreement. The 1958 Agreement, like most attachment agreements, requires that each attacher move its own lines. Requiring attachers to move their own lines may have been practical in the 1950s when there was only one electric line and one telephone line on a pole, but it is not practical in a technologically-advanced society with competing telephone, cable, and internet providers. Presently, in Nashville, as many as fourteen different attachments exist on a single pole, each of which has to be moved sequentially by each of the 3rd party attachers who owns those lines. 5 So, prior to Climb Once, there could be as many as fourteen different traffic stoppages to allow attacher climbs, per pole. The cumulative delay under this approach can be severe: by the time all the attachers have done their work on all of the poles, it can ultimately be months and months of delays, sidewalk closure, road closures, and safety concerns before a new 3 August 15, 2016 Metro Council Joint Committee Meeting at 0:51:30 (statement of Councilman Jeremy Elrod, 4 September 6, 2016 Metro Council Meeting at 1:47:42-1:47:54 (motion of Councilman Anthony Davis, 5 August 15, 2016 Metro Council Joint Committee Meeting at 0:50:50-0:52:18 (statement of Don Hill, Chief Engineer of NES. {N } 3 Case 3:16-cv Document 24 Filed 11/14/16 Page 3 of 43 PageID #: 286

4 attacher can operate. 6 These existing contracts do not take into account these negative effects. Indeed, protecting the public from such consequences is the responsibility of local governments, hence the enactment of Climb Once. Specifically, Climb Once requires that a new attacher is permitted to use a pole ownerapproved contractor to move all existing attachments 7 and add the new attachment, all at the new attacher s own expense. Prior to moving the existing attachments, the new attacher must provide fifteen days notice to all existing 3rd party attachers on the pole. In instances where moving an owner or 3rd party s attachment will cause or would reasonably be expected to cause a customer outage, Climb Once requires a field meeting to discuss the issue, after which the interested parties can then extend the notice deadline to 60 days. There is nothing in Climb Once that prohibits owners or 3rd party attachers from moving their own attachments prior to the respective notice deadlines. By reducing the time period in which owners and 3rd party attachers have to move their own lines, the ordinance is designed to encourage them to allow the new attacher to perform the work for them, thus consolidating efforts, reducing traffic interruption, and increasing safety. Against the background of Climb Once is the overarching federal regulation of pole attachments. Section 224 of the Communications Act of 1934, as amended, 47 U.S.C. 224 (the Pole Attachment Act or the PAA, and the pole attachment rules promulgated by the Federal Communications Commission (the FCC, 47 C.F.R , et seq., exist to regulate the rates, terms, and conditions for pole attachments to ensure terms that are just and reasonable. 6 September 6, 2016 Metro Council Meeting at 1:47:55-1:48:19 (motion of Councilman Anthony Davis, 7 Climb Once explicitly does not apply to attachments that are electrical or that are related to Metro cameras, radios, detection devices, or traffic-related equipment. (See Doc. #1-2 at PageID #25-26, Metro Ordinance No. BL However, any NES or Metro-owned telecommunications attachments would be subject to the requirements of the ordinance, the same as with AT&T or Comcast. {N } 4 Case 3:16-cv Document 24 Filed 11/14/16 Page 4 of 43 PageID #: 287

5 47 U.S.C.A. 224(b(1; 47 C.F.R Such attachments include those of cable companies, telecommunications providers, and broadband Internet access providers. 47 U.S.C. 224(a(4, (e, (f; Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601, (2015 ( Open Internet Order, pet. review denied, U.S. Telecom Ass n v. FCC, 825 F.3d 674 (D.C. Cir. 2016, pet. reh g pending. In its enactments, the FCC has repeatedly expressed concerns with intentional delay in moving existing attachments, which discriminates against new attachers who would act as competitors to the existing oligopolies. See, e.g., FCC Statement of Interest at 3-4, BellSouth Telecomms., LLC v. Louisville/Jefferson Cty. Metro. Gov t, Case No. 3:16-cv TBR (W.D. Ky., filed Oct. 31, 2016 (Docket No (attached to Motion as Exhibit 1. Although the FCC is not tasked with rights-of-way management (since, again, that is the responsibility of local governments, it has recognized that Climb Once ordinances, as a general matter, are consonant with federal telecommunications policy and the Federal Pole-Attachment Regulations, because they speed deployment and reduce barriers to competitive entry. Id. at 4-7. STANDARD OF PROOF The standard for testing the sufficiency of the allegations in a complaint under Fed. R. Civ. P. 12(b(6 was articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007. Twombly, 550 U.S. at ; Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009 ( Twombly expounded the pleading standard for all civil actions. (internal citations omitted. Under Twombly, a complaint must allege enough facts to state a claim to relief that is plausible on its face such that the plaintiff, raise[s] a right to relief above the speculative level. Twombly, 550 U.S. at 555, 570. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and {N } 5 Case 3:16-cv Document 24 Filed 11/14/16 Page 5 of 43 PageID #: 288

6 plausibility of entitlement to relief. Iqbal, 556 U.S. at 678 (internal quotations and citations omitted. [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679. AT&T brings a facial challenge to the Climb Once ordinance. A facial challenge to a law's constitutionality is an effort to invalidate the law in each of its applications, to take the law off the books completely. Speet, 726 F.3d at (quoting Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir (en banc; see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, n. 5 (1982 ( a facial challenge... means a claim that the law is invalid in toto and therefore incapable of any valid application. (quoting Steffel v. Thompson, 415 U.S. 452, 474 (1974. Facial challenges to a statute face a heavy burden. Sanitation and Recycling Industry, Inc. v. City of New York, 107 F.3d 985, 992 (2d Cir Generally, the party asserting a facial challenge to a statute must establish that no set of circumstances exists under which [it] would be valid. Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir. 2014, cert. denied sub nom. Liberty Coins, LLC v. Porter, 135 S. Ct. 950 (2015 (quoting U.S. v. Salerno, 481 U.S. 739, 745 (1987. Sustaining a facial attack to the constitutionality of a state law... is momentous and consequential. It is an exceptional remedy. Speet v. Schuette, 726 F.3d 867, 872 (6th Cir (quoting Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir ARGUMENT AT&T s first claim for relief is that Climb Once is preempted by the FCC s aforementioned regulations on pole attachments. This claim should be dismissed for several reasons. First, NES is exempt from FCC pole attachment regulation as a public pole owner. Second, as to AT&T s own poles, the FCC timeline does not conflict with Climb Once. The FCC {N } 6 Case 3:16-cv Document 24 Filed 11/14/16 Page 6 of 43 PageID #: 289

7 and Climb Once timelines apply to different circumstances and do not overlap with each other. Moreover, as the FCC has stated in the past month, Climb Once ordinances are consonant with FCC pole attachment policy. Third, Climb Once is a legitimate exercise of the Metropolitan Government s police powers to regulate public rights-of-way, not an attempt to invade the province of the FCC regarding pole attachments. However, to the extent that the Court finds that Climb Once may conflict with the FCC regulations, the Metropolitan Government asks that the Court refer primary jurisdiction over this issue to the FCC. AT&T s second claim for relief is that the Metropolitan Government is not empowered to enact Climb Once, as those powers have been delegated to NES by the Metro Charter. This claim should also be dismissed. First, AT&T does not have standing to bring this claim on NES s behalf. Second, NES is an indispensable party to this lawsuit as to this claim, and they have not been added as a defendant. Third, there is no private right of action available to enforce this claim. Fourth, to the extent that the claim is properly before the Court at all, it fails substantively, as the Metropolitan Government is empowered through its own charter to govern its public rights-of-way. AT&T s third claim for relief is that Climb Once violates its rights under the Contracts Clauses of both the United States and Tennessee Constitutions. This claim fails because AT&T cannot demonstrate any impairment to the 1958 Agreement between it and NES, much less the substantial impairment necessary to demonstrate a constitutional conflict. Moreover, even if a substantial impairment existed, Climb Once constitutes reasonable legislation directed to a significant and legitimate public purpose. Finally, the official capacity claims against Defendants Barry and Sturtevant should be dismissed since these claims are duplicative of the claims against the Metropolitan Government. {N } 7 Case 3:16-cv Document 24 Filed 11/14/16 Page 7 of 43 PageID #: 290

8 For these reasons, the Metropolitan Government requests that this Court dismiss AT&T s Complaint in its entirety and enter judgment declaring the Climb Once ordinance constitutional. Alternatively, to the extent that the Court believes that Climb Once may conflict with federal law, the Metropolitan Government requests that this Court designate primary jurisdiction over that question to the FCC while ruling on the other claims presented in this motion. I. CLIMB ONCE IS AN EXERCISE OF MUNICIPAL RIGHTS-OF-WAY MANAGEMENT AUTHORITY THAT IS CONSONANT WITH FEDERAL LAW. AT&T s claim that Climb Once conflicts with and is preempted by the Pole Attachment Act and the FCC pole attachment rules (Doc. #1, Compl. at PageID #8-9 fails as a matter of law. Climb Once is an exercise in local regulation of public rights-of-way managing construction activities in the Metropolitan Government s sidewalks and streets to limit disruption and maximize the safety and convenience of drivers and pedestrians not local regulation of pole attachments. And although Climb Once addresses the subject of pole attachment make-ready construction, it does not conflict with federal law. The FCC s pole attachment rules on which AT&T s claim is based do not even apply to the majority of utility poles in the Metropolitan Government, because they are owned by the municipal electric utility. With respect to those poles to which the FCC s rules do apply, no conflict exists. Rather, Climb Once and federal law align to serve the same purposes without any impossibility of complying with both. For the reasons explained below, the Court should dismiss AT&T s first claim for relief. A. Climb Once cannot be federally preempted as to NES-owned poles because NES is not subject to the Pole Attachment Act. The vast majority of poles in Davidson County do not fall under the federal Pole Attachment Act because they are owned by a public utility. Both the PAA and the accompanying FCC regulations make it clear that they do not apply to public utility poles. The federal pole attachment rules define a pole attachment as any attachment by a cable television system or {N } 8 Case 3:16-cv Document 24 Filed 11/14/16 Page 8 of 43 PageID #: 291

9 provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility. 47 U.S.C. 224(a(4; 47 C.F.R (b. Significantly, however, the definition of utility in this context is limited; both the statute and the FCC s regulations exclude from the definition of utility any person owned by... any State, and State, in turn, is defined as any State... of the United States... or any political subdivision, agency, or instrumentality thereof. 47 U.S.C. 224(a(1, (3; 47 C.F.R (a, (g. NES s poles are excluded from coverage under the PAA because NES is a municipal entity, which, in turn, is a subdivision of the state of Tennessee. See TENN. CONST. ART. XI, 9 (providing for the establishment of consolidated metropolitan governments; TENN. CODE ANN (4 (defining metropolitan government as the political entity created by consolidation of... the political and corporate functions of a county and a city or cities ; TENN. CODE ANN (noting, in the context of government tort liability, that consolidated metropolitan governments are political subdivisions of the state; CHARTER OF THE METRO. GOV T OF NASHVILLE & DAVIDSON CTY, TENN., ART. 11, ch. 3, ( The Electric Power Board of Nashville, created and established by [the Nashville City Charter], shall continue to exist as the Electric Power Board of the Metropolitan Government of Nashville and Davidson County and to function as an agency of the metropolitan government.... (attached to Motion as Exhibit 2; see also Nashville Elec. Serv. v. Luna, 204 S.W.2d 529, 531 (Tenn (stating, before the consolidation of the Nashville and Davidson County governments, that the Electric Power Board operated NES as an agent of the city of Nashville. Both the FCC and the courts have expressly ruled that publicly-owned utilities are not subject to the Pole Attachment Act. See Andrews Cable Bd. v. Murphy Elec. Power Bd., 15 FCC Rcd. 9617, (Cable Servs. Bur. 2000; City of Memphis v. Tandy J. Gilliland Family {N } 9 Case 3:16-cv Document 24 Filed 11/14/16 Page 9 of 43 PageID #: 292

10 LLC, No. W COA-R3-CV, 2015 WL , at *6 (Tenn. Ct. App. Dec. 16, 2015 (copy attached. Accordingly, the PAA and the accompanying FCC regulations cannot preempt the Climb Once ordinance as it relates to NES-owned poles. B. As to AT&T-owned poles, Climb Once is not preempted because it does not conflict with the Pole Attachment Act or the FCC s pole attachment rules. With respect to those privately owned poles to which the FCC regulations do apply, Climb Once is not only consistent with but also promotes the purposes of federal law. Federal law preempts state or local law where Congress has made an express statement of preemption ( express preemption ; where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law ( field preemption ; or where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress ( conflict preemption. Hughes v. Talen Energy Mktg., LLC, U.S., 136 S. Ct. 1288, 1297 (2016 (internal citations and quotation marks omitted. For conflict preemption to apply, it must be impossible for a private party to comply with both state and federal law. Yates v. Ortho-McNeil-Janssen Pharm., Inc., 808 F.3d 281, 294 (6th Cir Congress and the FCC have neither occupied the field of pole attachments nor foreclosed local management of public rights-of-way. AT&T fails to state a claim of field preemption or conflict preemption. 8 Field preemption occurs where Congress is understood to have intended to foreclose any state regulation in the area, irrespective of whether state law is consistent or inconsistent with federal standards. Oneok, Inc. v. Learjet, Inc., U.S., 135 S. Ct. 1591, 1595 (2015 (internal quotation marks and emphasis omitted. But the PAA and the FCC s pole attachment rules explicitly allow 8 AT&T does not, and cannot, allege express preemption, because the PAA does not include an explicit statement that it is intended to preempt state and local law in the area of pole attachments. {N } 10 Case 3:16-cv Document 24 Filed 11/14/16 Page 10 of 43 PageID #: 293

11 for a variety of state and local regulation affecting pole attachments most notably including permitting states to opt out of (or reverse preempt federal regulation of pole attachments altogether. 47 U.S.C. 224(c(1. Indeed, Congress specifically intended that federal regulation of pole attachments would merely supplement state and local regulation of pole attachments. See S. REP. No , at (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 (noting that attachments are ideally a matter for state or local regulation. Where federal law may be displaced at the state s option, it would be entirely inconsistent with preemption doctrine for that same federal law to occupy the field. Even in states like Tennessee, which have not reverse preempted the FCC s pole access rules, the federal scheme contemplates a role for state and local action with respect to pole attachments. The FCC has said as much, noting that neither its own regulations nor any other single set of rules can take into account all of the issues that can arise in the context of a single installation of attachment. Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 11 FCC Rcd. 15,499, 16, (1996, vacated on other grounds by Iowa Utils. Bd. v. FCC, 219 F.3d 744 (8th Cir. 2000, aff d in part, rev d in part sub nom. Verizon Commc ns, 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 ( Local Competition Order. The FCC neatly summarized its approach to local actions that affect pole attachments by stating that Section 224 requires deference [to local regulations] even if the state has not sought to [reverse] preempt federal regulations, acknowledging that only a direct conflict with federal policy by state and local requirements affecting pole attachments would render those {N } 11 Case 3:16-cv Document 24 Filed 11/14/16 Page 11 of 43 PageID #: 294

12 requirements preempted by federal law. Local Competition Order, 11 FCC Rcd. at 16, Because compliance with both Climb Once and the FCC s pole attachment rules is readily possible, the laws do not conflict. Nothing in Climb Once makes compliance with the FCC s pole attachment rules impossible. The Sixth Circuit has made it clear that [i]mpossibility pre-emption is a demanding defense. Yates, 808 F.3d at 294 (quoting Wyeth v. Levine, 555 U.S. 555, 573 (2009. Courts start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Id. The question for impossibility is whether the private party could independently do under federal law what state law requires of it. Id. at 295 (quoting PLIVA, Inc. v. Mensing, 564 U.S. 604, 620 (2011 (alteration omitted. Here, because pole owners and attachers would have no trouble complying with the ordinance and the FCC s pole attachment rules, impossibility preemption does not apply. First, Climb Once and the FCC s pole attachment rules impose requirements on different entities, and they do so in a way that does not prevent any entity from complying with both sets of rules. The make-ready timeline contained in the FCC s pole attachment rules imposes requirements only on utility pole owners. It is the pole owners that, under the FCC s pole attachment rules, must approve attachment applications, provide make-ready estimates, and set and send notice of make-ready deadlines to existing attachers. See, e.g., 47 C.F.R (c, (d, and (e. In contrast, Climb Once permits new attachers to elect to perform make-ready construction themselves. Notably, the FCC s rules do not grant existing attachers any right to adjust their own attachment on a utility s poles as part of make-ready construction; rather, the FCC rules simply {N } 12 Case 3:16-cv Document 24 Filed 11/14/16 Page 12 of 43 PageID #: 295

13 require the pole owner to inform existing attachers of the pole owner s make-ready deadline. See 47 C.F.R (e. Indeed, the FCC s rules contemplate a new attacher performing adjustments to existing attachments. Specifically, the FCC rules allow the new attacher to step in and complete make-ready work itself in the event that the make-ready work is not completed within a set timeframe, without reference to what party the utility pole owner or the existing attacher under whatever contractual arrangements exist between the pole owner and the existing attacher is responsible for meeting that deadline. See id (i. Second, while both the FCC s rules and Climb Once address to some extent the subject of make-ready construction, they do not conflict. Instead, they represent alternate paths to the same result completion of make-ready construction. Under the FCC s pole attachment rules, after a pole owner grants a new attacher s request for access to a pole, the pole owner must present the new attacher with an estimate of charges to perform all necessary make-ready work. See id (d. But the FCC s make-ready deadlines, which are the key to AT&T s claim, are triggered only once the pole owner has received payment of that make-ready estimate. See id (e; see also Exhibit 1 at 3 ( In 2011, the Commission promulgated a rule setting a date for completion of make-ready that is no later than 60 days after a request for attachment is accepted and payment received. (internal quotations and alterations omitted (emphasis added. In contrast, under Climb Once s one-touch make-ready approach, the new attacher is responsible for completing the work at its own expense. Payment of the estimate never takes place. The two paths thus neither cross nor conflict. Compliance with both is not impossible. 3. Climb Once promotes the purpose of the FCC s pole attachment rules. This lack of conflict is no mere accident of drafting. The federal Pole Attachment Act was initially enacted to address the superior bargaining position that utilities enjoyed over new {N } 13 Case 3:16-cv Document 24 Filed 11/14/16 Page 13 of 43 PageID #: 296

14 providers that needed access to utility poles to enable the aerial deployment of their cable infrastructure. See Southern Co. v. FCC, 293 F.3d 1338, (11th Cir Nevertheless, pervasive and widespread problems of delays in survey work, delays in makeready performance, delays caused by a lack of coordination among existing attachers, and other issues have persisted in creating obstacles for new attachers Pole Attachment Order, 26 FCC Rcd. at (footnotes omitted. The FCC s make-ready timeline was intended to operate as a backstop against such delays. In its 2010 Pole Attachment Order, the FCC declared that access to poles, including the preparation of poles for attachment, commonly termed make-ready, must be timely in order to constitute just and reasonable access [under Section 224]. 25 FCC Rcd. at 11, To that end, the FCC adopted rules setting a date for completion of make-ready that is no later than 60 days after a request for attachment is accepted and payment is made by the new attacher to the pole owner. See 47 C.F.R (e(1(ii; 2011 Pole Attachment Order, 26 FCC Rcd. at This timeline ensures that pole owners complete make-ready work that has been fully paid for by a new attacher, where the pole owner (having been paid in advance may otherwise have no incentive to complete the work. See id. 88. Climb Once, in addition to enabling the Metropolitan Government to limit the disruption and risk that can accompany make-ready work in the streets and other public rights-of-way, also serves to remedy these delays, by allowing the new attacher to complete make-ready construction in the first instance, rather than being obligated to pay the pole owner first and wait to see whether the pole owner meets its own deadline. In doing so, it works in alignment with federal telecommunications policy and the FCC s pole attachment rules to alleviate a significant barrier to timely broadband deployment. As the FCC recently put it, one-touch make-ready {N } 14 Case 3:16-cv Document 24 Filed 11/14/16 Page 14 of 43 PageID #: 297

15 policies directly advance federal pole attachment policies because they seek to alleviate a significant source of costs and delay in building broadband networks by lowering the cost of the make-ready process and speeding it up. See Exhibit 1 at 6 (internal quotations and alterations omitted. 9 By enacting Climb Once, the Metropolitan Government determined on a municipal level what approach to rights-of-way management would best serve local needs, and enacted an ordinance that aligns with and supports federal policy. C. Climb Once Is a Legitimate Exercise of the Metropolitan Government s Authority to Manage Its Public Rights-of-Way. Importantly, the FCC recognizes the authority of state and local governments to manage public rights-of-way, Local Competition Order at 16, (citing 47 U.S.C. 253(c; to that end, its pole attachment rules leave room for the exercise of the authority that local, state and Tribal entities have over rights-of-way, 2011 Pole Attachment Order, 26 FCC Rcd. at 5380 (Statement of Commissioner Michael J. Copps. The Metropolitan Government exercised its local police power to manage public rightsof-way in adopting the Climb Once ordinance. Under the Metropolitan Nashville Government Charter, Metro may exercise the general powers granted to it by Tennessee law. See METRO. CHARTER, ART. 2, 2.02 (attached to Motion as Exhibit 3. This includes all reasonable police powers to regulate the construction, maintenance, or operation of [a telephone] line within its limits. TENN. CODE ANN The Metropolitan Charter gives the Metropolitan Government further power over the use of the rights-of-way by public utilities and the general authority to enact all ordinances necessary for the health, convenience, safety and general welfare of the inhabitants.... See METRO. CHARTER, ART. 2, (granting the power 9 A FCC statement of interest on an issue is entitled to deference from the court. Talk America, Inc., v. Michigan Bell Telephone Co., 564 U.S. 50, 59 (2011 (holding courts defer to the FCC s interpretation of its regulations, even in a legal brief, unless the interpretation is plainly erroneous or inconsistent with the regulation, or does not reflect the agency s fair and considered judgment on the matter. {N } 15 Case 3:16-cv Document 24 Filed 11/14/16 Page 15 of 43 PageID #: 298

16 [t]o pass all ordinances necessary for the health, convenience, safety and general welfare of the inhabitants, and to carry out the full intent and meaning of this Charter, as fully as if specifically authorized (attached to Motion as Exhibit 4; id (granting the power [t]o grant rights-of-way through the streets and roads, and over the bridges and viaducts, for the use of public utilities. Federal and state courts have repeatedly confirmed the Metropolitan Government s authority to exercise its police powers to regulate use of the public rights-of-way by utilities and others. See Tennessee v. U.S., 256 F.2d 244, 258 (6th Cir. 1958; S. Bell Tel. & Tel. Co. v. City of Nashville, 243 S.W.2d 617, 619 (Tenn. Ct. App Indeed, The Metropolitan Government s right to regulate how its rights-of-way are used should not come as a surprise to AT&T. AT&T and its predecessors have been parties to some of the cases described here confirming the right of the Metropolitan Government (and its predecessors to exercise municipal police powers to control use of public rights-of-way. Metro Gov t of Nashville and Davidson Cty. v. BellSouth Telecomm., Inc., 502 F. Supp. 2d 747 (M.D. Tenn (citing Tennessee, 256 F.2d 244; S. Bell, 243 S.W.2d 617 (holding that BellSouth was obligated to pay its own relocation costs when the Metropolitan Government required it to move its telephone lines to accommodate a public construction project of a park and parking garage. This is precisely the type of authority that the Metropolitan Government exercised here when it enacted Climb Once. (See Doc. #1-2, Ordinance No. BL (stating that the Metropolitan Government has the authority and desire to facilitate the efficient construction or upgrade of communications networks on utility poles located in the public rights-of-way while promoting and protecting public safety and reducing inconvenience to Nashville residents. The ordinance permits a single construction crew to perform almost all adjustments that are {N } 16 Case 3:16-cv Document 24 Filed 11/14/16 Page 16 of 43 PageID #: 299

17 necessary to make the pole ready for a new attacher, with the exceptions described above. Using a single crew greatly reduces the number of trips needed to complete work on a given pole, which in turn reduces many of the other dangers and negative effects of construction, including traffic congestion, blocked sidewalks, increased wear on roads, the number of times workers need to climb utility poles, and construction-related accidents and fatalities. 10 The community benefits from less disruption to the flow of traffic and from shortened bouts of construction near roads and sidewalks. Safety is improved by having all work done to a pole in coordinated fashion. Thus, the PAA and the FCC s pole attachment rules leave ample room for local regulation; they do not occupy any field or conflict so as to foreclose the Metropolitan Government from managing its rights-of-way as it did by enacting Climb Once. D. In the Alternative, AT&T s Federal Preemption Claim Should Be Dismissed and Referred to the FCC Under the Doctrine of Primary Jurisdiction. For the reasons stated above (and by the FCC in Exhibit 1, Climb Once is not preempted by the FCC pole attachment rules, and therefore AT&T s First Claim for Relief should be dismissed for failure to state a claim. If, however, the Court has any doubt on that issue, it should, under the primary jurisdiction doctrine, dismiss AT&T s claim and refer the question of whether Climb Once is consistent with FCC pole attachment regulations to the FCC. The doctrine of primary jurisdiction enables courts to refer a matter to the appropriate agency whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956 (citing Gen. Am. Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 (1940. Courts have referred claims to agencies where there is a need to (1 advance uniformity, (2 answer a question within an agency s discretion, or 10 See supra notes 1 and 2. {N } 17 Case 3:16-cv Document 24 Filed 11/14/16 Page 17 of 43 PageID #: 300

18 (3 benefit from technical or policy considerations within the expertise of an agency. Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 466 (6th Cir (citing United States v. Radio Corp. of Am., 358 U.S. 334, 346, 350 (1959 (on uniformity; FTC v. Verity Int l, Ltd., 443 F.3d 48, 60 (2d Cir (on agency discretion; Ellis v. Tribune Television Co., 443 F.3d 71, (2d Cir (on technical or policy expertise; Far E. Conference v. United States, 342 U.S. 570, 574 (1952 (on technical or policy expertise. As in Alltel Tennessee, Inc. v. Tenn. Pub. Serv. Comm n, 913 F.2d 305, 310 (6th Cir. 1990, both reasons for invoking the doctrine of primary jurisdiction, the need for agency expertise and for uniformity of decisions, are present in this case. Here, the issue of whether Climb Once conflicts with the FCC s regulations falls squarely within the policy and technical expertise of the FCC. 11 As AT&T alleges in its complaint, it is the FCC that is tasked with promulgating rules and regulations to carry out the Pole Attachment Act (See Doc. #1, Compl. at 21, and it is the FCC that drew specific lines to weigh and balance various competing interests, including the public interest in giving utilities and telecommunications carriers sufficient time to perform make-ready work to ensure safety and reliability (id. at 29. The FCC not only has expertise in regulating pole attachments, but it also has experience in furthering Congress general instruction to the FCC to encourage the deployment of broadband Internet capability and, if necessary, to accelerate deployment of such capability by removing barriers to infrastructure investment. Nat l Cable & Telecomm. Ass n v. Gulf Power Co., 534 U.S. 327, 339 (2002 (quoting Publ. L , Tit. VII, 706(a, (b, and (c(1, 110 Stat. 153, note following 47 U.S.C. 157 (1994 Ed., Supp. V.. Primary jurisdiction is appropriate here to benefit from the FCC s pole attachment expertise, as 11 As discussed above, the FCC has already stated that one touch make-ready policies are consistent with federal law and its regulations. Ex. 1 at 5-7. {N } 18 Case 3:16-cv Document 24 Filed 11/14/16 Page 18 of 43 PageID #: 301

19 well as its discretion in balancing the technical, and sometimes competing, considerations of its statutory mandate. II. THE METROPOLITAN GOVERNMENT HAS NOT INFRINGED ON NES S POWERS BY ENACTING CLIMB ONCE, NOR DOES AT&T HAVE THE RIGHT TO BRING THIS CLAIM. AT&T advances the argument that the ordinance is ultra vires. (Doc. #1, Compl. at As an initial matter, this Court should decline to exercise supplemental jurisdiction over what is purely a question of state law. However, in the event the Court chooses to exercise jurisdiction, the claim should be dismissed for the following reasons: First, AT&T does not have standing to bring a claim that the Metropolitan Government is encroaching on the rights of NES; that claim belongs solely to NES, which is an indispensable party to this case. Second, there is no private right of action for AT&T to enforce the Metro Charter through an injunction. Third, to the extent that AT&T could lawfully assert a claim against the Metropolitan Government on behalf of NES, that claim fails substantively, since Metro is empowered to enact Climb Once as part of its rights-of-way management. For the reasons explained below, the Court should dismiss AT&T s second claim for relief. A. AT&T Does Not Have Standing to Assert NES Rights. AT&T argues that the ordinance is ultra vires because it impinges upon the authority of NES to manage and control the operation of NES s properties. (Doc. 1, Compl. at Respectfully, that argument is for NES, and only NES, to make if it so chooses. AT&T simply does not have standing to make arguments on NES s behalf particularly where, as here, NES is an indispensable party, yet AT&T has chosen not to include them in this lawsuit. The United States Supreme Court has narrowly limited the circumstances in which one party will be given standing to assert the legal rights of another. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, (1978. Thus, even where a plaintiff has {N } 19 Case 3:16-cv Document 24 Filed 11/14/16 Page 19 of 43 PageID #: 302

20 alleged an injury sufficient to confer Article III standing, courts have held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Id. at 80 (citing Warth v. Seldin, 422 U.S. 490, 499 (1975. Reasons for the prudential standing limitation when rights of third parties are implicated include, the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is present to champion them. Id. Other bases for denying standing are that it may encourage the parties to join new parties whose own rights are affected, protect against conflicts of interest that may be apparent or subtle, or the nonparty may simply be uninterested in asserting the right. 13A Fed. Prac. & Proc. Juris (3d ed.. Even a party that satisfies the requirements of Article III standing may seek to enforce the legal rights of a third party only where: (1 the party can show an injury in fact; (2 the party has a close relationship with the possessor of the right; and (3 there is a hindrance to the possessor s ability to protect its own interests. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004; Powers v. Ohio, 499 U.S. 400, (1991. The irreducible constitutional minimum of standing under Article III of the Constitution includes the requirement that the plaintiff must have suffered an injury in fact... which is (a concrete and particularized,... and (b actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct (internal quotation marks omitted. Yet, Plaintiff s Complaint alleges only injuries that are hypothetical. (Doc. 1, Compl. at 40. Here, even assuming for purposes of the Motion that the rather speculative injury AT&T conjures up in its complaint would come to pass, it cannot satisfy the second and third prongs of the test. AT&T s relationship to NES is not sufficiently close. See, e.g., Superior MRI Services, {N } 20 Case 3:16-cv Document 24 Filed 11/14/16 Page 20 of 43 PageID #: 303

21 Inc. v. Alliance Healthcare Services, Inc., 778 F.3d 502, (5th Cir (holding purported successor-in-interest to contract rights did not have prudential standing, and confirming that the doctrine is still applicable after the Supreme Court s decision in Lexmark International, Inc. v. Static Control Components, Inc., U.S., 134 S.Ct (2014; In re Cannon, 277 F.3d 838, (6th Cir (bankruptcy trustee precluded from maintaining an action that benefits anyone other than the estate. Even if there is a sufficiently close relationship between AT&T and NES, there is absolutely no hindrance to NES s ability to protect its own interests. NES is perfectly capable of suing to protect its own interests, and has done so by filing a declaratory judgment action in state court. (See Doc. #20-1, Nashville Electric Service v. Access Fiber Group, Inc., et al., Davidson County Chancery Court Part III, Case No III. NES, therefore, is no different than any other entities or individuals which courts have found able to protect their own interests. See, e.g., Smith v. Jefferson County Bd. of School Com rs, 641 F.3d 197, (6th Cir (en banc, cert. denied, 132 S. Ct. 103, (2011 (Teachers at an alternative services school that was closed in favor of contracting with a faith-based organization to provide alternative services to the students lacked standing to assert the First Amendment rights of their students. They had a sufficiently close relationship to the students to satisfy that element of third-party standing. But we discern no indication... that the students or their parents face any obstacle in litigating their rights themselves. ; Freeman v. Town of Hudson, 714 F.3d 29, 39 (1st Cir (A contractor lacked standing to claim that enforcement of zoning laws to force his customer to remove the contractor s business sign from the customer s property violated the customer s rights. [T]here is no allegation that the customer is incapable of asserting his or her own rights... ; McKinney {N } 21 Case 3:16-cv Document 24 Filed 11/14/16 Page 21 of 43 PageID #: 304

22 v. U.S. Dept. of Treasury, 799 F.2d 1544, 1555 (Fed. Cir (a corporation is capable of asserting its own legal rights. It is worth noting that in the state court lawsuit, NES has chosen not to argue that the ordinance is ultra vires likely because AT&T s argument is wrong on the merits. Regardless, the argument is NES s to make or not. Duke Power Co., 438 U.S. at 80 (noting that a party may not wish to assert its rights. Ironically, by attempting to argue on behalf of NES that the ordinance impinges on NES s autonomy, AT&T fails to give due regard for NES s autonomy to stake out its own legal positions. B. NES is an Indispensable Party to This Lawsuit. The Metropolitan Government also requests this Court dismiss the case for lack of an indispensable party, that is, NES. Clearly, NES is an indispensable party on the state law claim AT&T brings which purports to exercise NES rights. Fed. R. Civ. P. 19(a, entitled Persons to Be Joined if Feasible, states in relevant part: Id. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A in that person's absence, the court cannot accord complete relief among existing parties; or (B the person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i as a practical matter impair or impede the person's ability to protect the interest; or (ii leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff. As the United States Supreme Court has explained, [t]here is no prescribed formula for determining in every case whether a person is an indispensable party. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118 (1968 (emphasis added. {N } 22 Case 3:16-cv Document 24 Filed 11/14/16 Page 22 of 43 PageID #: 305

23 In the instant case, NES is a person who claims an interest relating to the subject of the action.... FED. R. CIV. P. 19(a. As discussed above, it is NES who would have standing to advance the argument that the ordinance somehow interferes with its Charter authority. Furthermore, NES is so situated that disposing of the action in [its] absence may... as a practical matter impair or impede [its] ability to protect that interest. FED. R. CIV. P. 19(a. The mere fact that AT&T advances an argument purportedly on NES behalf does not mean that NES agrees with it. To permit AT&T to advance arguments on behalf of an entity not a party to the lawsuit improperly allows AT&T to stake out legal positions with which that party may not agree. By definition, this impairs or impedes NES s ability to protect its interests. Finally, to the extent the issue is litigated in state chancery court 12, it leaves the Metropolitan Government at substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reasons of the interest. FED R. CIV. P. 19(a. It is entirely possible this Court and the state chancery court may not agree on whether the ordinance impinges on NES authority. Finally, AT&T did not even state in its complaint, as it must, why NES was not joined in this action. FED. R. CIV. P. 19 (c requires that when asserting a claim for relief, a party must state: (1 the name, if known, of any person who is required to be joined if feasible but is not joined, and; (2 the reasons for not joining that person. Accordingly, NES is an indispensable party, and Defendants request that this portion of AT&T s claim be dismissed for failure to join them. 12 AT&T is a defendant in that case and is, therefore, expected to raise the issue in that forum. {N } 23 Case 3:16-cv Document 24 Filed 11/14/16 Page 23 of 43 PageID #: 306

24 C. The Metropolitan Charter Has No Private Right of Action For AT&T to Enforce Claims that Metro is Encroaching on the Power of NES. Nor is there any private right of action to enforce the Metropolitan Charter through injunction. In Tennessee, the burden of proving the existence of a private right of action is on the plaintiff. Premium Finance Corp. v. Am. v. Crump Ins. Serv. Of Memphis, Inc., 978 S.W.2d, 93 (Tenn (affirming dismissal for failure to state a claim where insurance company failed to comply with state statute requiring it to return certain premiums for canceled insurance and where there was no private cause of action in the statute. Damages and injunctions cannot be issued to enforce a local government s charter where no private right of action exists: [U]nless the legislative intent to create a private right of action can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist. Gillespie v. City of Memphis, No. W COAR3CV, 2008 WL , at *10 (Tenn. Ct. App. June 5, 2008 (emphasis added (denying damages and injunction sought for violation of civil service provisions of Memphis Charter and City ordinance where neither provided for a private right of action (copy attached; see also, Johnson v. City of Memphis, No DP, 2006 WL , at *18 (W.D. Tenn. Dec. 28, 2006 (copy attached, rev'd, on other grounds 770 F.3d 464, 2014 WL (6th Cir ( neither the Charter nor the City Ordinance provisions at issue explicitly provide for a private cause of action for individual monetary relief or retroactive promotions for an alleged violation of these provisions. There is no enforcement mechanism specifically set forth in of the Charter or 9-3 of the City Ordinances... Accordingly, although the Court has found Defendant to be in violation of the City Charter and Ordinances in its administration of the 2000 process, the Court finds that the remedies Plaintiffs seek are unavailable under the city laws. ; State, ex rel. Deselm v. Tennessee Peace Officers {N } 24 Case 3:16-cv Document 24 Filed 11/14/16 Page 24 of 43 PageID #: 307