RESPONDENT:Gulf Power Company
LOCATION:Free Speech Coalition
DOCKET NO.: 00-832
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit
CITATION: 534 US 327 (2002)
ARGUED: Oct 02, 2001
DECIDED: Jan 16, 2002
James A. Feldman – Argued the cause for the petitioners in No. 00-843
Peter D. Keisler – Argued the cause for the petitioner in No. 00-832
Thomas P. Steindler – on behalf of the Respondents
Facts of the case
The Pole Attachments Act requires the Federal Communications Commission (FCC) to set reasonable rates, terms, and conditions for certain attachments to telephone and electric poles. A pole attachment includes “any attachment by a cable television system or provider of telecommunications service to a [utility’s] pole, conduit, or right-of-way.” After the FCC issued an order that interpreted the Act to cover pole attachments for commingled high-speed Internet and traditional cable television services and attachments by wireless telecommunications providers, pole-owning utilities challenged the order. Reversing both of the FCC’s positions, the Court of Appeals held that commingled services are not covered by either of the Act’s two specific rate formulas and, thus, were not covered by the Act. Additionally, the appellate court held that the Act does not give the FCC authority to regulate wireless communications.
Does the Pole Attachments Act cover attachments that provide both cable television and high-speed Internet service? Does the Act cover attachments by wireless telecommunications providers?
Media for National Cable and Telecommunications Association v. Gulf Power Company
Audio Transcription for Opinion Announcement – January 16, 2002 in National Cable and Telecommunications Association v. Gulf Power Company
William H. Rehnquist:
The opinion of the Court No. 00-832 National Cable and Telecommunications Association versus Gulf Power Company and the associated case would be announced by Justice Kennedy.
Anthony M. Kennedy:
Cable Television companies as we all know need a means to run a wire into the home of each subscriber.
I don’t know how do they do this.
Well, they have found it convenient and often essential to lease space for the cables on existing telephone and electric utility poles.
More recently wireless telecommunication providers have likewise found it convenient to use these same existing poles and the pole distribution structure.
Now, utilities, in turn, have found it convenient to charge monopoly rights.
Congress has addressed these transactions by enacting the statutes that is involved in this case and it is called The Pole Attachments Act.
The Act requires the Federal Communications Commission to regulate terms, rates terms, and conditions for the pole attachments.
The question here is the meaning of Pole Attachment as applied to two different sorts of equipment.
So, the case before presents two questions regarding the scope of the Act: first is the Act which attachments that provides both cable television and high-speed internet service.
More and more cable companies are offering in addition to the cable television service the additional service of high-speed internet access which is sometimes called broadband access.
And the question is, “Does The Pole Attachments Act reach the attachments that are for this so called co-mingled purpose?”
Second, does the Act reach attachments by wireless telecommunication providers?
And both of these questions of course require us to determine what Pole Attachment is as that term is used in the Act.
As to the attachments that provide high-speed internet access at the same is cable television, this is a co-mingled service.
The Act defines Pole Attachments to include any attachment by a cable television system, and we think these provisions resolve the question.
No one disputes that a cable attached by a cable television company, which provides only cable television services in attachment.
If one day, the cable provides high-speed internet access in addition to the cable television service, the cable does not cease at that instant to be an attachment by a cable television system, and that is the term that was used in the Act.
The addition of a service does not change the character of the attaching entity, the entity that the attachment is by and that is what matters under the statute.
Now, this result is more sensible than the ones in which the respondents contend on their view if a cable company attempts to innovate at all and provide anything other than pure television, it loses the protection of The Pole Attachment Act and subject itself to monopoly pricing.
The resulting contradiction of longstanding interpretation would defeat Congress’s general instruction to the Federal Communications Commission to encourage the deployment of broadband internet capability.
This congressional policy underscores the reasonableness of the FCC’s interpretation.
Cable attachments providing commingled services we hold do come within the ambit of the Act.
Then the second question presented is whether the equipment of the wireless telecommunication provider is subject to the FCC regulation under the Act.
Now, all parties agree that a wireline and actual line is subject to the act of the dispute that remains then becomes a narrow one, and it is whether or not some attachments by wireless telecommunication providers which are composed of distinctively wireless equipment are excluded from coverage under the Act.
Again, we think that dispositive text is that which defines a pole attachment to include any attachment by a provider of telecommunications service.
Telecommunication service is defined as the offering of telecommunications to the public regardless of the facilities used.
The provider of a wireless telecommunication service is a provider and so the attachment is a pole attachment.
There may be some sorts of devices which are not attachments under the Act but the attachments that are here at issues, at issue one which provides the commingled cable and internet service and the one which provides wireless telecommunications fall within the heartland of the Act.
The agencies’ decision therefore to assert jurisdiction over these attachments is reasonable and is entitled to our deference.
Anthony M. Kennedy:
The judgment of the Court of Appeals for the Eleventh Circuit is reversed and the cases are remanded for further proceedings consistent with this opinion.
On the first question regarding commingled internet and cable services, Justice Thomas has filed a dissent which Justice Souter has joined.
On the second question regarding wireless telecommunications equipment, the opinion of the Court is unanimous.
Justice O’Connor took no part in the consideration or the decision of these cases.