CHARLESTON – West Virginia Cable Telecommunications Association, on behalf of its members, is suing the governor and the attorney general alleging the new broadband law could cause outages.
WVCTA claims the new law could cause internet service outages at both customers’ homes and businesses, according to a complaint filed July 14 in the U.S. District Court for the Southern District of West Virginia.
The new law allows new, encroaching providers seeking to attach their own equipment to poles to move aside WVCTA members’ equipment on their own, without the members’ consent or oversight and with no prior notice in many instances.
The attachment procedures set forth in House Bill 3093 Art. 4 are squarely inconsistent with the comprehensive federal scheme covering private pole attachments, according to the suit.
WVCTA claims its members serve approximately 400,000 subscribers in West Virginia and that many components of the networks are attached to utility poles located in the public rights-of-way.
Federal rules already dictate how telecommunication companies share and access equipment on utility poles, according to the suit.
The new state law conflicts with longstanding federal law and the new law is unconstitutional, according to the suit.
The new law went into effect on July 7. Last week, Frontier filed a lawsuit alleging the same points as WVCTA’s lawsuit.
“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,” Frontier’s complaint stated. “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 claimed the law conflicts with and is preempted by the pole attachment regulations of the Federal Communications Commission.
WVCTA is seeking a declaration and judgment that the make-ready provisions of HB 3093 are invalid because they conflict with and are pre-empted by federal law and an order permanently enjoining the defendants from enforcing HB 3093’s make-ready provisions. It is being represented by Richard L. Gottlieb and Spencer D. Elliott of Lewis Glasser Casey & Rollins; Matthew A. Brill, Melissa Arbus Sherry, Matthew T. Murchison and Lilit Sheymamajash Edwards of Latham & Watkins.
U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03609
