According to FierceIPTV, Mediacom Southeast’s running battle to stop AT&T Inc from deploying its ‘U-verse’ IPTV service in Kentucky under a perpetual telephone franchise licence dating back to 1886 has been buoyed by the Sixth Circuit Court’s decision to overturn a lower court’s prior ruling that granted AT&T’s request to dismiss the case. The primarily procedural step suggests that the District Court erred by granting a dismissal before sufficient discovery, with an adequate factual record.
Back in 2009 the city of Hopkinsville and the Kentucky League of Cities initiated a case against AT&T when the telco sought to deploy U-verse. The cities contended that AT&T needed a new franchise agreement with each municipality to deploy U-verse over its telephone lines, and argued the 1886 franchise issued by the state did not cover the new technology. AT&T settled with the city and asked the District Court for the Western District of Kentucky to dismiss the case. However, following the dismissal, Mediacom, an incumbent provider in Hopkinsville, stepped in and challenged AT&T once more, using the same argument.
The Circuit Court’s latest ruling is however far from conclusive. It concluded: ‘The question of how to characterise AT&T’s new video service is not as clear-cut as AT&T contends. Is AT&T’s U-verse video service a mere evolution of its two-way telephone communication services, or is it conceptually different, and more akin to one-way cable television service? … The video component of U-verse may or may not fall within the rubric of AT&T’s perpetual telephone franchise’.
FierceIPTV writes that the 1886 franchise was originally granted to BellSouth Telecommunications, allowing it to ‘purchase, construct, maintain and operate, within this state and elsewhere, telephone lines, exchanges and systems, and to conduct all the business incident and pertaining thereto’ and to ‘construct, equip and maintain telephone lines along, over or under the highways, streets and alleys, and across any water-course within this commonwealth, so as not to obstruct the same’.