May 12, 2021 – MCC Iowa LLC, a subsidiary of Mediacom Communications Corporation, has filed a Section 253 petition, seeking expedited Federal Communications Commission review of the City of West Des Moines’ grant of exclusive rights-of-way to a single communications provider, Google Fiber LLC.

Section 253(a) of the Communications Act provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”

In its petition, MCC Iowa, an integrated telecommunications and broadband service provider, explains that in 2020, West Des Moines announced its intention to build an underground, citywide conduit network in its rights-of-way financed with $50 million of city funds. MCC Iowa states that West Des Moines “repeatedly represented” that the city network would be open to all Internet service providers. However, MCC Iowa alleges West Des Moines entered into a contract with Google Fiber that grants the company “special rights, benefits and privileges with respect to the City’s ROW which are unprecedented and extraordinary in kind, number and scope.” MCC Iowa claims West Des Moines allowed Google Fiber to control the design of the conduit network, and alleges the city’s agreement grants Google Fiber, among other things, the exclusive right to occupy each segment of the conduit network for eighteen months after completion.

MCC Iowa claims West Des Moines’ actions violate Section 253 of the Communications Act in at least the following three ways:

First, the City gave Google Fiber a large, exclusive subsidy that distorts communications competition in the West Des Moines market. Second, the City granted Google Fiber exclusive ROW access rights that enable it to deploy its network far more cheaply and efficiently than its competitors. Third, the design of the Conduit Network forecloses its use by any providers that are not Google Fiber, and absolutely prohibits its use by competitors using alternative technologies such as Mediacom and CenturyLink.

MCC Iowa alleges West Des Moines’ agreement with Google Fiber violate Section 253(a) “and cannot be not saved by any justification available under Section 253(c).” Because of this, MCC Iowa claims, the city’s agreement “must be preempted under Section 253(d).”

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