I am here to follow up comments I made to council on December 19 regarding Lancaster City’s approval to hire counsel to enter into litigation with PPL regarding PPL’s lawsuit against MAW Communications. I must preface these statements by indicating that I am supportive of a municipal broadband network and I believe internet access is indispensable to operating in today’s world. My issue is that the City of Lancaster’s consultant, MAW Communications, has seriously jeopardized this project and placed almost five million dollars of tax payer money at risk. Serious reconsideration of the strategy to continue this project forward needs to occur, and it is not acceptable to dive into a futile legal defense of an incapable third party consultant. To the new administration’s great credit, they spent a considerable amount of time with me on January 19 discussing this topic. My intention here is to highlight this issue with the new council members, provide additional background, and ensure my comments are in the public record. I very much hope I can, at minimum, spur you all to look into this issue further and ask some very pointed questions to ensure this project is still on the “right track.” I have provided a reference sheet for your review and reading.
47 CFR Part 1, Subpart J – Pole Attachment Complaint Procedures, provides the general guidelines for the FCC’s current rules in governing and resolving disputes associated with pole attachments. As part of these requirements, any entity wishing to make new or modify existing attachments to the poles must make the request in writing, regardless of any pre-existing agreement between the utilities. There are then time frames outlined for the pole owners to respond. I have also provided a reference with an explanation of the attachment request evaluation stages and mandated timeframes for the pole owner to review. If the request / application is denied, the pole owner must provide in writing the technical rational for the denial. This section of the CFR then proceeds to outline the process for resolving complaints if the third party feels they are being treated unfairly. Based on previous reports, it appears MAW has, at least partially, made applications to PPL for attachments within the city of Lancaster as part of the Lanc-City Connect Project. These applications were denied, per a PPL statement to the Morning Call due to a request for a waiver to PPL attachment procedures they were unwilling to grant.
If the denial was truly completely unreasonable/unjust, the appropriate action would have been to enter into the FCC’s complaint resolution process prior to making any unauthorized attachments to PPL Poles. A necessary part of the FCC’s process is that good faith executive level discussions must have occurred prior to FCC appeal. It is unclear if these discussions have taken place. What did occur is that MAW Communications proceeded to make unauthorized attachments to PPL poles, instigating the current lawsuit that seriously jeopardizes all work completed to date, places at risk enormous sums of taxpayer money, and jeopardizes the entire municipal broadband effort within the city. MAW Communications actions are indefensible.
What is even more troubling is that this current legal dispute is not even the most legally challenging part of a municipal broadband effort as evidenced by the Google Fiber Project. I urge council and city officials to review the background behind One-Touch-Make Ready ordinances and the results of recent legal challenges brought on by Comcast and AT&T against the City of Nashville. This precedent demonstrates that it is critical to maintain the pole owner is at minimum an agnostic entity towards the municipal broadband effort.
While I am paraphrasing, the general justification provided by city officials in our meeting for the current path forward was first that MAW is still considered to be responsible/technically capable as they have operated a fiber ISP for several city buildings for several years and that legal action is justified as PPL’s attachment procedures are unfair. Additionally, that PPL has previously not strictly enforced their attachment policies and Lanc-City connect is being unfairly targeted. I find none of these arguments sufficiently persuasive or rooted in sufficient specific technical documentation and I again urge the council and city leaders to re-examine the municipal broadband deployment strategy and planned legal action. Future municipal broadband deployment strategy needs to be based on existing case law/regulations and precedent. My position is that it is irresponsible to incur significant legal fees on a futile avoidance attempt of FCC mandated make-ready procedures and that an alternative and openly qualified competitive local exchange carrier should be identified to complete the municipal broadband deployment. MAW Communications has placed the entire LANC-CITY connect project in jeopardy via their installation of unauthorized attachments and should not be continued to be subsidized via taxpayer funds.
Finally, during the December 19 meeting, the City indicated MAW had completed an independent safety audit of the facilities installed to date indicating that installation was in a professional and safe manner. I urge this report be released to the public.