CHARLESTON – Frontier Communication has filed a lawsuit, alleging that the state’s new broadband law violates federal law.
Gov. Jim Justice; Chairman Michael A. Albert; Commissioner Brooks F. McCabe Jr.; and Commissioner Renee A. Larrick were all named as defendants in the suit.
Frontier is attempting to prevent a section of the law from going into effect.
On July 7, a new West Virginia law allows third parties to perform work on Frontier’s communications network, in some circumstances without so much as prior notice to Frontier, according to a complaint filed July 7 in the U.S. District Court for the Southern District of West Virginia.
Frontier claims that under the new law, where a third party seeks to attach equipment to an electric utility pole and Frontier already has communications lines or other facilities on the pole, the third party may relocate or alter Frontier’s facilities as it deems necessary.
“If the third party believes its work on Frontier’s facilities would not cause or reasonably be expected to cause a customer outage, the third party need not notify Frontier in advance,” the complaint states. “The new law similarly would allow a third-party attacher to relocate or alter the facilities of an existing attacher on poles owned by Frontier.”
Frontier claims the law conflicts with and is preempted by the pole attachment regulations of the Federal Communications Commission.
The new law also violates the Contract Clause of the Fifth and 14th Amendments of the U.S. Constitution, according to the suit.
Frontier claims it has existing contractual relations with cable providers and other attachers in West Virginia that govern, among other things, the use of Frontier’s poles and the maintenance of existing attachments and facilities on Frontier’s poles.
“Nothing in the contracts permits third parties to rearrange or transfer existing attachments and facilities of cable television providers or others unilaterally, and certainly not without prior notice,” the complaint states.
Frontier is seeking a judgment that the bill conflicts with and is preempted by federal law, that the bill violates the Contract Clause of the U.S. Constitution and that it violates the Fifth and 14th Amendments of the U.S. Constitution. It is also seeking a permanent injunction restraining the defendants from enforcing or authorizing any third parties to act pursuant to Article 4. It is being represented by Thomas R. Goodwin and W. Jeffrey Vollmer of Goodwin & Goodwin; and Joseph J. Starsick Jr. of Frontier.
House Bill 3093 allows for the formation of internet co-ops to establish related infrastructure. Both chambers of the West Virginia Legislature overwhelming approved the bill, which was later signed by Justice. It went into effect Friday.
The case is assigned to District Judge John T. Copenhaver Jr.
U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03560
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