Case 3:16-cv-00124-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, Electronically Filed Plaintiff, v. Case No. 3:16-cv-00124-TBR 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. 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. Case 3:16-cv-00124-TBR Document 56 Filed 10/06/16 Page 2 of 2 PageID #: 839 Respectfully submitted, /s/ Byron E. Leet Byron E. Leet [email protected] Brittany L. Hampton [email protected] Wyatt, Tarrant & Combs LLP 500 West Jefferson Street, Suite 2800 Louisville, KY 40202 Telephone: (502) 562-7354 Facsimile: (502) 589-0309 Email: [email protected] 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 20036 Telephone: (202) 730-1300 Facsimile: (202) 730-1301 Email: [email protected] 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. 61549565.1 2 Case 3:16-cv-00124-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, Electronically Filed Plaintiff, v. Case No. 3:16-cv-00124-TBR 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. 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 Case 3:16-cv-00124-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. § 224. 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 Case 3:16-cv-00124-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 [email protected] Brittany L. Hampton [email protected] Wyatt, Tarrant & Combs LLP 500 West Jefferson Street, Suite 2800 Louisville, KY 40202 Telephone: (502) 562-7354 Facsimile: (502) 589-0309 Email: [email protected] and 3 Case 3:16-cv-00124-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 20036 Telephone: (202) 730-1300 Facsimile: (202) 730-1301 Email: [email protected] 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. 61549563.1 4 Case 3:16-cv-00124-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, Electronically Filed Plaintiff, v. Case No. 3:16-cv-00124-TBR 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. 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. Case 3:16-cv-00124-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.