Cable lobby says Google Fiber doesn’t need Title II to get pole access

[RoadWarrior]

The top cable lobby group says Google is blowing smoke when it comes to Title II and pole attachment rights.

Google told the Federal Communications Commission that reclassifying broadband providers as common carriers under Title II of the Communications Act would help Google and other companies gain access to infrastructure controlled by utilities. Section 224 of Title II covers pole attachments, and Google urged the FCC to enforce this section if it does move broadband under Title II.

But that isn't even necessary, the National Cable & Telecommunications Association (NCTA) argued in a filing today, saying that "Google already can avail itself of pole attachment rights under Section 224, notwithstanding its assertions to the contrary. Google’s letter states that Google Fiber 'lacks federal access rights pursuant to Section 224' because it offers an 'Internet Protocol video service that is not traditional cable TV.' But as NCTA has explained on numerous occasions... the law is clear that facilities-based providers of Internet Protocol television ('IPTV') services do qualify as cable operators under the Communications Act of 1934, as amended ('the Act'). The Act defines 'cable operator' as one who 'provides cable service over a cable system,' without any reference to the technology (IP-based, QAM-based, or otherwise) used to provide such service."

Google declined to comment when contacted by Ars.

Google did face trouble getting pole attachments in Austin, Texas, where AT&T owns about 20 percent of the utility poles. AT&T claimed in late 2013 that Google did not qualify as a telecom or cable provider and thus did not have the right to attach to AT&T's poles. The companies apparently negotiated an agreement, as Google is now getting ready to offer fiber service in Austin.

UPDATE: AT&T told Ars that "In early 2014, AT&T and Google entered into a nationwide agreement regarding Google's access to AT&T's poles on a city-by-city basis. The agreement grants Google access to AT&T poles if AT&T receives terms as favorable as Google obtained for access to the city's infrastructure, poles, conduits, assets and rights-of-way."

Google's letter to the FCC on December 30 argued that the company does not receive Section 224 protections. "Section 224 confers upon cable system operators and telecommunications carriers the right of 'nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled' by a utility," Google wrote. "Currently, therefore, a BIAS [broadband Internet access service] provider that does not offer its broadband access service on a common-carriage basis, and does not offer other cable television or telecommunications services over its network, lacks the federal protection Section 224 affords to traditional cable systems and telecommunications carriers."

The NCTA argued that Google could also become a common carrier if it wanted to, regardless of what the FCC does. "Google Fiber also could obtain pole attachment rights under Section 224 by choosing to unbundle the transmission component of its broadband Internet access service and operating as a telecommunications carrier subject to the obligations and restrictions of Title II," the NCTA wrote. "However, Google Fiber has declined to submit to Title II regulation in exchange for pole attachment rights—a tacit acknowledgment that the significant burdens associated with Title II would far outweigh any benefits that Section 224 could confer. And if Google Fiber is unwilling to accede to burdensome Title II regulation on its own, it would make even less sense to impose Title II on the entire broadband industry merely to assure Google Fiber of its pole attachment rights."

The cable lobby has also argued that Title II would drive up the price of pole attachments for its members.

If cable providers were classed as telecommunications carriers, “there’d be the possibility of significant increases in the fees we’d have to pay the utilities for the exact same attachments that we have,” NCTA’s associate general counsel Steve Morris told Ars recently. “How you’re classified affects what you have to pay. It’s not a logical regime but that’s how it works.”