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Cox Suit Targets Tempe’s Deal With Google Fiber

Cox Communications has filed a lawsuit against the city of Tempe, Ariz., claiming that the city’s license agreement with Google Fiber violates federal and state law.

In the complaint, filed Monday (Sept. 14) with the U.S. District Court for the District of Arizona and reported on by Decaturish.com, Cox alleges that the city of Tempe is harming the incumbent cable provider by “establishing a discriminatory regulatory framework” with respect to a license that paves the way for Google Fiber to deliver broadband and TV services there. Google Fiber has yet to commit to build in Tempe and other areas of Arizona, including Phoenix and Scottsdale. Cox had complained earlier about the proposed Google Fiber terms in Tempe, DSL Reportsnoted.

Cox alleged that, in December 2014, the city of Tempe amended its City Code by creating a new category license for “video services providers” that included amendments that would exempt Google Fiber from “various rules and obligations that apply to cable operators.”

As an example, Cox said Tempe agreed to waive certain standard city requirements, including one for underground construction to accommodate Google Fiber.

The City of Tempe has been asked for a statement on the matter. Update: The city said it is not commenting on the lawsuit at this time. 

“Although state and local authorities may negotiate franchises…that vary from cable operator to cable operator within the bounds of the federal Cable Act, they are not free to alter the scope or applicability of the licensing scheme  – or the cable television regulatory regime as a whole – by exempting from its requirements a provider that meets the definition of a ‘cable operator’ providing ‘cable service’ under federal law,” Cox claimed.

The city’s “bald assertion that Google Fiber is not a cable operator is incorrect,” Cox said, noting that Google Fiber’s proposed video offering would include the same types of programming channels furnished by cable operators.  

Cox said Tempe has “unlawfully established two different regulatory frameworks” for cable service providers – one for Cox and other “cable operator licensees” and one for Google Fiber.

In the complaint, Cox also noted that it’s expanding its own gigabit broadband service (branded “G1GABLAST”) and has been seeking to provide it to Tempe residents, and alleges that, for 10 months, the city “has refused the grant necessary permissions to Cox” for requisite aerial construction. “Consequently, Cox’s plans to provide for gigabit-speed broadband service in Tempe have been significantly delayed.” A Cox spokesman, Todd Smith, said Cox has begun to offer G1GABLAST in Tempe in new-build multiple dwelling unit developments. Other Arizona markets where the service has been introduced are: Ahwautee, Scottsdale, Phoenix, Glendale, Chandler, Surprise and Mesa.

Cox has asked the court for a permanent injunction that prohibits the city and its mayor from implementing a “License for a Video Services System and Rights-of-way Use Agreement” with Google Fiber, and for the city to cover all costs and fees associated with the case.

Smith, the Cox spokesman, provided this statement: “While we normally don’t comment on active litigation, I will say that Cox believes that recent actions taken by the City of Tempe to license Google Fiber violate federal and state law. Tempe residents should have the opportunity to get television and internet service from providers who are willing and able to meet the same government rules and regulations, especially those that protect customer privacy and property rights. It is the City’s responsibility to ensure that happens. Unfortunately, Tempe created a different set of rules for a new provider that waived important customer privacy and property protections.” 

The city of Phoenix also has a new license agreement to bring in Google Fiber. Cox did not sue to block that rollout: in Phoenix the government stressed a need to treat existing providers Cox and CenturyLink fairly, and said those companies will have an opportunity to renegotiate their licenses with the city, the Arizona Republicreported.