Case 3:16-cv TBR Document 56 Filed 10/06/16 Page 1 of 2 PageID #: 838

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1 Case 3:16-cv TBR Document 56 Filed 10/06/16 Page 1 of 2 PageID #: 838 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION BELLSOUTH TELECOMMUNICATIONS, LLC, v. Plaintiff, 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. Case No. 3:16-cv TBR Electronically Filed MOTION OF GOOGLE FIBER INC. FOR LEAVE TO FILE A BRIEF AMICUS CURIAE IN OPPOSITION TO AT&T S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF LOUISVILLE METRO S CROSS-MOTION FOR SUMMARY JUDGMENT Google Fiber Inc. ( Google Fiber ) respectfully moves this Court for leave to file a brief amicus curiae in opposition to the motion for summary judgment of BellSouth Telecommunications, LLC ( AT&T ) and in support of the cross-motion for summary judgment of Louisville/Jefferson County Metro Government ( Louisville Metro ). The reasons for granting this motion are stated in a memorandum filed herewith and incorporated herein. Google Fiber has requested consent of both parties to Google Fiber s filing of an amicus brief. Defendant Louisville Metro does not object. Plaintiff AT&T has indicated that it would object. A proposed order granting this Motion is tendered herewith.

2 Case 3:16-cv TBR Document 56 Filed 10/06/16 Page 2 of 2 PageID #: 839 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 Telephone: (502) Facsimile: (502) bleet@wyattfirm.com 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 Telephone: (202) Facsimile: (202) 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

3 Case 3:16-cv TBR Document 56-1 Filed 10/06/16 Page 1 of 4 PageID #: 840 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION BELLSOUTH TELECOMMUNICATIONS, LLC, v. Plaintiff, 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. Case No. 3:16-cv TBR Electronically Filed MEMORANDUM OF GOOGLE FIBER INC. IN SUPPORT OF MOTION FOR LEAVE TO FILE A BRIEF AMICUS CURIAE IN OPPOSITION TO AT&T S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF LOUISVILLE METRO S CROSS-MOTION FOR SUMMARY JUDGMENT Google Fiber Inc. ( Google Fiber ) respectfully submits this memorandum in support of its motion for leave to file a brief amicus curiae in opposition to the motion for summary judgment of BellSouth Telecommunications, LLC ( AT&T ) and in support of the cross-motion for summary judgment of Louisville/Jefferson County Metro Government ( Louisville Metro ). I. NATURE OF GOOGLE FIBER S INTEREST Google Fiber provides high-speed Internet access, television, and Voice-over-Internet- Protocol 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. Before construction of a new Google Fiber network begins, Google Fiber undertakes an in-depth assessment of the relevant laws at the city, state, and federal

4 Case 3:16-cv TBR Document 56-1 Filed 10/06/16 Page 2 of 4 PageID #: 841 level. Google Fiber also works closely with city leaders to review existing local infrastructure, both public and privately owned, to determine the best way to deploy a new network for example, by using existing utility poles to provide an aerial route for fiber-optic cable. Experts then evaluate the real-world circumstances along potential aerial fiber routes to complete the network design. As a result of its experience working with different municipalities in different states to deploy networks in 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, including in states that, like Kentucky, have reverse preempted the federal pole attachment rules under 47 U.S.C These experiences allow Google Fiber to provide the Court with a distinctively informed perspective on the issues presented in this case. No counsel for any party authored the tendered amicus brief in whole or in part; no party or party s counsel made a monetary contribution to fund its preparation or submission; and no person other than Google Fiber or its counsel made such a monetary contribution. II. RELEVANCE TO THIS ACTION It is within this Court s sound discretion to allow Google Fiber s participation as amicus curiae in this matter. United States v. State of Michigan, 940 F.2d 143, 165 (6th Cir. 1991). The amicus brief tendered here will be useful to the Court because it draws on Google Fiber s operational expertise to explain why Ordinance No. 021, Series 2016 (the Ordinance ) is a legitimate exercise of municipal authority over local rights-of-way that is consistent with federal and state law. In the brief, Google Fiber explains why the federal law on which AT&T relies does not apply and why, under Kentucky law, the Ordinance is a legitimate exercise of the 2

5 Case 3:16-cv TBR Document 56-1 Filed 10/06/16 Page 3 of 4 PageID #: 842 municipal police power to manage construction activities that disrupt local public rights-of-way. Google Fiber also explains how the Ordinance addresses real-world concerns of new entrants that seek to deploy high-speed broadband infrastructure and services to new consumers while minimizing the attendant safety risk, disruption, and inconvenience to the communities being served. Google Fiber s participation will not delay or otherwise burden this litigation. Google Fiber has followed the progress of this case and reviewed the relevant filings. Google Fiber is making its motion and tendering the amicus brief on the same date that Louisville Metro s response to AT&T s pending motion for summary judgment is due. III. CONCLUSION For the foregoing reasons, Google Fiber respectfully requests that this Court grant its motion for leave to file a brief amicus curiae in opposition to AT&T s motion for summary judgment and in support of Louisville Metro s cross-motion for summary judgment. 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 Telephone: (502) Facsimile: (502) bleet@wyattfirm.com and 3

6 Case 3:16-cv TBR Document 56-1 Filed 10/06/16 Page 4 of 4 PageID #: 843 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 Telephone: (202) Facsimile: (202) 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

7 Case 3:16-cv 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, v. Plaintiff, 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. Case No. 3:16-cv TBR Electronically Filed BRIEF OF AMICUS CURIAE GOOGLE FIBER INC. IN OPPOSITION TO AT&T S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF LOUISVILLE METRO S 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 Fiber s 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 Fiber s 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.

8 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 2 of 19 PageID #: 845 INTEREST OF AMICUS CURIAE Google Fiber provides high-speed Internet access, television, and Voice-over-Internet- Protocol 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 network for 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 2

9 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 3 of 19 PageID #: 846 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 Metro s 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 Louisville s local rights-of-way. Plaintiff s 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 3

10 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 4 of 19 PageID #: 847 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 Plaintiff s 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 (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 attachers and does not contradict any policy of the PSC the Ordinance does not conflict with the PSC s 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 Fiber s 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 speeds often 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. 4

11 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 5 of 19 PageID #: 848 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 community s ability to use streets and sidewalks without being inconvenienced, and encouraging economic development. The tools employed by municipalities include permitting, zoning, and as Louisville Metro s Ordinance illustrates construction 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 needed that 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 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 work or it may send multiple crews to perform different kinds of work. Other attachers then do the same with their 5

12 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 6 of 19 PageID #: 849 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 Gov t Feb. 11, 2016) ( February 11, 2016 Louisville Metro Council ) (testimony of Councilman Kevin Kramer), (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), 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 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 6

13 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 7 of 19 PageID #: 850 make-ready performance (footnotes omitted)); FEDERAL COMMUNICATIONS COMMISSION, CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 111 (2010) (setting forth a broadband provider s 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 attacher s 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 Fiber s 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 attacher s 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. 7

14 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 8 of 19 PageID #: 851 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 Metro s 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 Gov t Feb. 2, 2016) ( February 2, 2016 Louisville Metro Public Works Committee ) (testimony of Councilman Bill Hollander), (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 owner whether it is an electric utility, a telecommunications company, or another entity controls 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, 8

15 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 9 of 19 PageID #: 852 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 deployment making 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), Municipalities routinely adopt dig once ordinances and variations requiring coordination of excavation in their rights-of-way. See, e.g., Houston, Tex., Municipal Code (requiring mandatory joint trenching and prohibiting re-excavation within a certain amount of time); Santa Monica, Cal., Municipal Code (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. 9

16 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 10 of 19 PageID #: 853 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 rules ignoring that those rules are inapplicable in Kentucky and 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 Metro s 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. Plaintiff s 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. Plaintiff s federal preemption claim cannot survive Kentucky s reverse preemption of the federal pole attachment rules and the FCC s explicit acknowledgement of the state s action. 10

17 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 11 of 19 PageID #: 854 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 Nat l Cable & Telecomms. Ass n v. Gulf Power Co., 534 U.S. 327, 330 (2002)); see also H.R. Rep. No , 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 industry s 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 , 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) (citing S. Rep. No 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). 11

18 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 12 of 19 PageID #: 855 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 state s 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 & 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 FCC s pole attachment rules. See id. at 5371 at Appendix C; States That Have Certified That They Regulate Pole Attachments, 25 FCC Rcd (2010). Kentucky s 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 Plaintiff s claim that the Ordinance conflicts with and is preempted by the FCC s 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 (noting that the FCC retains jurisdiction over pole attachments only in states that do not... certify [that they regulate pole attachments] ). 12

19 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 13 of 19 PageID #: 856 Congress s 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 FCC s] state partners, whose efforts on establishing fair access rules were particularly instructive to the Commission s 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 LOUISVILLE S MUNICIPAL RIGHTS-OF-WAY MANAGEMENT AUTHORITY. In addition to allowing states room to regulate pole attachments, federal law also specifically recognizes local government s 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, (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), 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. 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 & n.29 (noting that in the Local Competition Order, 11 FCC Rcd. at 16,068-69, , the FCC found that utility internal operating standards reflect regional and local 13

20 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 14 of 19 PageID #: 857 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 government including 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 (2). Louisville Metro s adoption of the Ordinance falls squarely within the police power explicitly reserved to municipalities by this latter provision of the PSC s 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 municipality s 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 Metro s police powers including its authority to manage activities in local rights-ofway must 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. 14

21 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 15 of 19 PageID #: 858 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 , , (granting home rule authority to counties and cities of the first class, respectively). The Ordinance reflects Louisville Metro s 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 Kentucky s preservation of municipal police powers in the PSC statute, Plaintiff claims that Louisville Metro s authority over its rights-of-way conflicts with the PSC s exclusive jurisdiction over the regulation of rates and service of utilities. Ky. Rev. Stat. Ann (2). More specifically, Plaintiff argues that under Kentucky law, attachments to a utility s poles are part of the rates or services of a utility within the meaning of KRS , and so the Ordinance conflicts with the jurisdiction vested in the PSC. AT&T Mot. at 5. But Plaintiff s 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 Ass n 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 PSC s jurisdictional statute. But the Ordinance does not regulate the utility s 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 Metro s public rights-of-way. This falls within Louisville Metro s 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 15

22 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 16 of 19 PageID #: 859 intruding on the PSC s 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 PSC s 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 Ass n v. Lexington-Fayette Urban Cty. Gov t, 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 Ass n, 131 S.W.3d at 751. Nor could it do so; the Kentucky Revised Statutes contain no such scheme. 16

23 Case 3:16-cv TBR Document 56-2 Filed 10/06/16 Page 17 of 19 PageID #: 860 The Ordinance is akin to long-standing parts of the Louisville Metro Code that streamline underground multi-party construction in the public rights-of-way a 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 Gov t Code (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 We are not aware of any suggestion that these dig once provisions interfere with the Kentucky PSC s jurisdiction over utility services. If Plaintiff s preemption arguments were taken seriously, however, these noncontroversial rules seemingly would be unenforceable. Louisville Metro s 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 Louisville s 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 The Ordinance thus reflects Louisville Metro s effort to manage the local effects of such build-outs. 17

24 Case 3:16-cv 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 PSC s regulation of rates and service of utilities. Ky. Rev. Stat. Ann (2). Again, PSC regulation like the federal regulation that it displaces is 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 Louisville s municipal authority. CONCLUSION Louisville Metro s 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&T s motion for summary judgment, grant Louisville Metro s 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 Telephone: (502) Facsimile: (502)

25 Case 3:16-cv 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 Telephone: (202) Facsimile: (202) 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

26 Case 3:16-cv TBR Document 56-3 Filed 10/06/16 Page 1 of 2 PageID #: 863 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION BELLSOUTH TELECOMMUNICATIONS, LLC, v. Plaintiff, 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. Case No. 3:16-cv TBR Electronically Filed ORDER GRANTING GOOGLE FIBER INC. S MOTION FOR LEAVE TO FILE A BRIEF AMICUS CURIAE IN OPPOSITION TO AT&T S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF LOUISVILLE METRO S CROSS-MOTION FOR SUMMARY JUDGMENT Upon the motion of Google Fiber Inc. for leave to file a brief amicus curiae in opposition to AT&T s motion for summary judgment and in support of Louisville Metro s cross-motion for summary judgment, and the court being sufficiently advised, IT IS HEREBY ORDERED that Google Fiber Inc. s motion is hereby GRANTED. Done, this day of, 2016.

27 Case 3:16-cv TBR Document 56-3 Filed 10/06/16 Page 2 of 2 PageID #: 864 Tendered By: /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 Telephone: (502) Facsimile: (502) bleet@wyattfirm.com 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 Telephone: (202) Facsimile: (202) tsimeone@hwglaw.com Counsel for Amicus Curiae Google Fiber Inc