Nos. 00-832 and 00-843 

In the Supreme Court of the United States 

NATIONAL CABLE TELEVISION ASSOCIATION, 
PETITIONER 

v. 
GULF POWER COMPANY, ET AL. 

FEDERAL COMMUNICATION COMMISSION AND UNITED 
STATES OF AMERICA, PETITIONERS 

v. 
GULF POWER COMPANY, ET AL. 

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

BRIEF FOR THE FEDERAL PETITIONERS 

JANE E. MAGO 

Acting General Counsel 

JOHN E. INGLE 

Deputy Associate General 

Counsel 

GREGORY M. CHRISTOPHER 

Counsel 
Federal Communication 

Commission 
Washington, D.C. 20554 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

JOHN M. NANNES 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

ROBERT B. NICHOLSON 
ROBERT J. WIGGERS 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTIONS PRESENTED 

Certain provisions of the Pole Attachments Act, 
47 U.S.C. 224 (1994 & Supp. IV 1998), direct the Fed- 
eral Communications Commission to set “just and rea- 
sonable” rates, 47 U.S.C. 224(b)(1), that a utility may 
charge for “any attachment by a cable television system 
or provider of telecommunications service to a pole, 
duct, conduit, or right-of-way owned or controlled by a 
utility,” 47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998). 
The questions presented are: 

1. Whether those provisions of the Pole Attach- 
ments Act apply to attachments by cable television 
systems that are simultaneously used to provide high- 
speed Internet access and conventional cable television 
programming. 

2. Whether those provisions of the Pole Attach- 
ments Act apply to attachments by providers of 
wireless telecommunications services no less than to 
attachments by providers of wireline telecommuni- 
cations services. 

(I) 

II 

PARTIES TO THE PROCEEDING 

In addition to the parties named in the caption, the 
parties to the proceeding in the court of appeals were 
Alabama Power Company, Georgia Power Company, 
Southern Company Services, Tampa Electric Company, 
Potomac Electric Power Company, Virginia Electric & 
Power Company, Carolina Power & Light Company, 
Duquesne Light Company, Delmarva Power & Light 
Company, Public Service Electric & Gas Company, 
Houston Lighting & Power Company, Texas Utilities 
Electric Company, American Electric Power Service 
Corporation, Commonwealth Edison Company, Duke 
Energy Corporation, Union Electric Company, Florida 
Power and Light Company, the National Cable Televi- 
sion Association, MCI Telecommunications Corpora- 
tion, U S WEST, Inc., Bell South Corporation, A T & T 
Corporation, SBC Communications, Inc., Pacific Bell, 
Nevada Bell, Southwestern Bell Telephone Company, 
GTE Service Corporation, Pennsylvania Cable & Tele- 
communications Association, Arizona Cable Telecom- 
munications Association, and Ameritech Corporation. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 2 

Statute involved ............................................................................. 
2 

Statement ........................................................................................ 2 

Introduction and summary of argument ................................... 
11 

Argument: 

I. The Pole Attachments Act protects pole 

attachments by cable television systems that 

provide commingled cable television service 

and internet access ....................................................... 

15 

A. Section 224 by its terms protects attach- 
ments to provide commingled cable 

television and internet access ........................... 

15 

B. Congress had sound policy reasons for 

including commingled cable television 

service and internet access in the Act’s 

protections ............................................................ 19 

C. The Act’s special rate provisions for 

attachments “used * * * solely to pro- 
vide cable service” or attachments “used 

by telecommunications carriers to provide 

telecommunications services” do not re- 
strict the basic coverage of the Act ................ 
22 

D. The court of appeals’ construction of the 

Act disregarded settled principles under 

which the FCC’s construction of the Com- 
munications Act is entitled to deference ......... 

27 

II. The Pole Attachments Act protects providers 

of wireless telecommunications service no less 

than providers of wireline telecommunications 

service ............................................................................. 31 

Conclusion ....................................................................................... 36 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

AT&T v. City of Portland, 216 F.3d 871 

(9th Cir. 2000) ....................................................................... 

5, 30 

AT&T v. Iowa Utils. Bd., 525 U.S. 366 

(1999) .............................................................................. 

28, 29, 36 

BCI Telecom Holding, Inc. v. Jones Intercable, Inc., 

3 F. Supp. 2d 1165 (D. Colo. 1998) ..................................... 

16 

Brogan v. United States, 522 U.S. 398 (1998) .................. 

34 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ........ 

29 

FCC v. Florida Power Corp., 480 U.S. 245 (1987) .... 

2, 22, 23 

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 

(1999) ........................................................................................ 16-17 

IRS v. FLRA, 494 U.S. 922 (1990) ..................................... 

31 

SEC v. Chenery Corp., 318 U.S. 80 (1943) ........................ 

31 

Texas Utils. Elec. Co. v. FCC, 997 F.2d 925 

(D.C. Cir. 1993) ..................................................................... 

3, 22 

United States v. Gonzales, 520 U.S. 1 (1997) .................... 

32 

Constitution and statutes: 

U.S. Const. Amend. V (Takings Clause) .............................. 

6 

Communications Act of 1934, 47 U.S.C. 151 et seq.: 

47 U.S.C. 153(43) (Supp. IV 1998) .................................... 

8, 31 

47 U.S.C. 153(44) (Supp. IV 1998) ...................................... 

8 

47 U.S.C. 153(46) (Supp. IV 1998) ........................... 

4, 8, 14, 31 

47 U.S.C. 201(b) ..................................................................... 

28 

47 U.S.C. 251(h) (Supp. IV 1998) ........................................ 

18 

Pole Attachments Act, Pub. L. No. 95-234, § 6, 92 Stat. 

35, (47 U.S.C. 224 (1994 & Supp. IV 1998)) ................. 

passim 

47 U.S.C. 224(a) (1994 & Supp. IV 1998) ............ 

17, 25, 26 

47 U.S.C. 224(a)(1) (1994 & Supp. IV 1998) .............. 

14, 32 

47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998) ............ 

passim 

47 U.S.C. 224(a)(5) (Supp. IV 1998) ........................... 

18, 19 

47 U.S.C. 224(b) ................................................ 15, 17, 25, 26 

V 

Statutes—Continued: Page 

47 U.S.C. 224(b)(1) ...................................................... 

passim 

47 U.S.C. 224(b)(2) ............................................................ 

28 

47 U.S.C. 224(c) (1994 & Supp. IV 1998) ............. 

17, 18, 19 

47 U.S.C. 224(c)(1) (1994 & Supp. IV 1998) .................. 

17 

47 U.S.C. 224(c)(2)(B) (1994 & Supp. IV 1998) ............ 

17 

47 U.S.C. 224(c)(3)(B) ....................................................... 

17 

47 U.S.C. 224(d) (1994 & Supp. IV 1998) .................... 

4, 22, 

24, 25, 26, 27, 31 
47 U.S.C. 224(d)(1) (42 U.S.C. 224(d)(2)) .................. 

23, 27 

47 U.S.C. 224(d)(2) ............................................................ 

23 

47 U.S.C. 224(d)(3) (Supp. IV 1998) ... 

4, 7, 23, 27, 29, 31, 32 

47 U.S.C. 224(e) (1994 & Supp. IV 1998) .................. 

23, 24, 

25, 26, 27 

47 U.S.C. 224(e)(1) (Supp. IV 1998) ........ 
4, 7, 8, 24, 27, 29 

47 U.S.C. 224(e)(2) (Supp. IV 1998) ............................... 

24 

47 U.S.C. 224(e)(3) (Supp. IV 1998) ............................... 

24 

47 U.S.C. 224(f ) (Supp. IV 1998) .................................... 

4 

47 U.S.C. 224(f )(1) (Supp. IV 1998) ......................... 

4, 8, 19 

Telecommunications Act of 1996, Pub. L. No. 104-104, 

110 Stat. 56 .............................................................................. 

3 

Tit. V, § 509, 110 Stat. 138 (47 U.S.C. 230(b)(1) 

(Supp. IV 1998)) .............................................................. 

21 

Tit. VII, 110 Stat. 153 (47 U.S.C. 157 note): 

§ 706(a), 110 Stat. 153 ................................................. 

20 

§ 706(b) 110 Stat. 153 .................................................. 

20 

§ 706(c)(1) 110 Stat. 153 .............................................. 

20 

Miscellaneous: 

Federal-State Joint Board on Universal Serv., In re, 

13 F.C.C.R. 11,501 (2000) ..................................................... 

30 

H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. 
(1996) .............................................................................. 
24, 25, 26 

Inquiry Concerning High-Speed Access to the Internet 

Over Cable and Other Facilities, In re, 15 F.C.C.R. 

19,287 (2000) ............................................................................ 30 

VI 

Miscellaneous—Continued: Page 

Inquiry Concerning the Deployment of Advanced 

Telecommunications Capability to All Americans in 

a Reasonable and Timely Fashion, and Possible Steps 

to Accelerate Such Deployment Pursuant to Section 

706 of the Telecommunications Act of 1996, In re, 

14 F.C.C.R. 2398 (1999) ...................................................... 

21 

Promotion of Competitive Networks in Local 

Telecommunication Markets, In re, 14 F.C.C.R. 

12,673 (1999) ........................................................................ 

21, 35 

S. Rep. No. 367, 103d Cong., 2d Sess. (1994) ........................ 
25 

S. Rep. No. 580, 95th Cong., 1st Sess. (1977) ................. 
2, 3, 18 

States That Have Certified That They Regulate Pole 

Attachments, 7 F.C.C.R. 1498 (1992) ................................ 17 

In the Supreme Court of the United States 

No. 00-832 

NATIONAL CABLE TELEVISION ASSOCIATION, 
PETITIONER 

v. 
GULF POWER COMPANY, ET AL. 

NO. 00-843 

FEDERAL COMMUNICATION COMMISSION AND UNITED 
STATES OF AMERICA, PETITIONERS 

v. 
GULF POWER COMPANY, ET AL. 

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

BRIEF FOR THE FEDERAL PETITIONERS 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-41a1) 
is reported at 208 F.3d 1263, and the order denying 
rehearing en banc (Pet. App. 42a-55a) is reported at 226 
F.3d 1220. The principal order of the Federal Commu- 
nications Commission (FCC), In re Implementation of 
Section 703(e) of the Telecommunications Act of 1996: 

1 “Pet. App.” references in this brief are to the appendix to the 
petition for a writ certiorari in No. 00-843. 

(1) 

2 

Amendment of the Commission’s Rules and Policies 
Governing Pole Attachments, is reported at 13 
F.C.C.R. 6777 (1998) and is reprinted in Pet. App. 56a- 
204a. 

JURISDICTION 

The judgment of the court of appeals was entered on 
April 11, 2000. A petition for rehearing was denied on 
September 12, 2000 (Pet. App. 55a). The petition for a 
writ of certiorari in No. 00-843 was filed on November 
21, 2000. The petition for a writ of certiorari in No. 00- 
832 was filed on November 22, 2000. The Court granted 
the petitions for a writ of certiorari and consolidated 
the two cases on January 22, 2001. The jurisdiction of 
this Court is invoked under 28 U.S.C. 1254(1). 

STATUTE INVOLVED 

The Pole Attachments Act, 47 U.S.C. 224 (1994 & 
Supp. IV 1998), is set forth at Pet. App. 205a-211a. 

STATEMENT 

1. Since the inception of cable television, cable 
operators have leased space on telephone or electric 
utility poles, or in underground utility conduits, for the 
attachment of cable distribution facilities, such as 
coaxial or fiber-optic cable and associated equipment. 
Pet. App. 5a; S. Rep. No. 580, 95th Cong., 1st Sess. 15 
(1977). Constraints imposed by “zoning restrictions, 
environmental regulations, and start-up costs have 
rendered other options infeasible.” Pet. App. 5a. The 
“monopoly” enjoyed by the power and telephone com- 
panies on poles and conduits “that could accommodate 
television cables has allowed them, in the past, to 
charge monopoly rents.” Ibid. See generally FCC v. 
Florida Power Corp., 480 U.S. 245 (1987). 

3 

To address that problem, Congress in 1978 enacted 
the Pole Attachments Act, Pub. L. No. 95-234, § 6, 92 
Stat. 35 (47 U.S.C. 224 (1994 & Supp. IV 1998)). Then 
as now, the Act required the FCC to “regulate the 
rates, terms, and conditions for pole attachments to 
provide that such rates, terms, and conditions are just 
and reasonable.” 47 U.S.C. 224(b)(1). A “pole attach- 
ment” was defined as “any attachment by a cable 
television system to a pole, duct, conduit, or right-of- 
way owned or controlled by a utility.” 47 U.S.C. 
224(a)(4); see generally S. Rep. No. 580, supra. The 
FCC interpreted that provision to require it to ensure 
“just and reasonable” rates for all of a cable company’s 
attachments, “regardless of the type of service 
provided over the equipment attached to the poles,” 
and even if the attachments are used for “both 
traditional (i.e., video) and nontraditional (i.e., data) 
services on a ‘commingled’ basis.” Texas Utils. Elec. 
Co. v. FCC, 997 F.2d 925, 927, 929 (D.C. Cir. 1993) 
(approving FCC interpretation). 

2. The Pole Attachments Act was amended by the 
Telecommunications Act of 1996, Pub. L. No. 104-104, 
110 Stat. 56, which comprehensively revised the struc- 
ture of regulation for the entire communications indus- 
try. Among the changes made by the Telecommunica- 
tions Act were the following: 
First, the 1996 amendments made the protections of 
the Pole Attachments Act available to certain entities 
beyond cable television operators. They accomplished 
that end by expanding the definition of the term “pole 
attachment” in Section 224 from “any attachment by a 
cable television system” to “any attachment by a cable 
television system or provider of telecommunications 
service.” 47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998) 
(emphasis added). Such “telecommunications service” 

4 

is in turn defined as “the offering of telecommunications 
for a fee directly to the public, or to such classes of 
users as to be effectively available directly to the pub- 
lic, regardless of the facilities used.” 47 U.S.C. 153(46) 
(Supp. IV 1998). See also p. 8 n.4, infra (statutory defi- 
nitions of “telecommunications” and “telecommunica- 
tions carrier”). 

Second, the 1996 amendments altered the specifica- 
tion of pole attachment rates that are applicable in 
particular contexts under the Act. Before 1996, Section 
224(d) had set forth a particular formula for determin- 
ing “just and reasonable” rates. In 1996, Congress 
provided that that formula “shall apply to the rate for 
any pole attachment used by a cable television system 
solely to provide cable service.” 47 U.S.C. 224(d)(3) 
(Supp. IV 1998). Congress also provided that the Com- 
mission “shall * * * prescribe regulations in accor- 
dance with” a somewhat different formula “to govern 
the charges for pole attachments used by telecommuni- 
cations carriers to provide telecommunications ser- 
vices.” 47 U.S.C. 224(e)(1) (Supp. IV 1998).2 

3. The FCC implemented the amendments to the 
Pole Attachments Act in In re Implementation of 
Section 703(e) of the Telecommunications Act of 1996: 
Amendment of the Commission’s Rules and Policies 
Governing Pole Attachments, 13 F.C.C.R. 6777 (1998), 
see Pet. App. 56a-204a. As pertinent here, the Commis- 
sion determined that the protections of Section 224 

2 In an additional significant change, the 1996 amendments 
added a new Section 224(f ). That provision does not address rates, 
but instead provides that “[a] utility shall provide a cable television 
system or any telecommunications carrier with nondiscriminatory 
access to any pole, duct, conduit, or right-of-way owned or con- 
trolled by it.” 47 U.S.C. 224(f )(1) (Supp. IV 1998). 

5 

continue to cover attachments used simultaneously 
for providing data services and traditional cable televi- 
sion service. Id. at 85a-89a. Such data services increas- 
ingly include “cable modem” service: the use of cable 
facilities—including the same wires over which conven- 
tional cable television signals are transmitted—to 
provide “broadband” (high-speed) Internet access to 
consumers. That technology “allows users to access the 
Internet at speeds fifty to several hundred times faster 
than those available through conventional computer 
modems connected to what is commonly referenced in 
the telecommunications industry as ‘plain old telephone 
service.’ ” AT&T v. City of Portland, 216 F.3d 871, 873- 
874 (9th Cir. 2000). The Commission based its 
conclusion that the Act governed attachments used 
simultaneously to provide cable television and Internet 
access on the ground that it “is still obligated under 
Section 224(b)(1) to ensure that the ‘rates, terms and 
conditions [for pole attachments] are just and rea- 
sonable,’ and, as Section 224(a)(4) states, a pole attach- 
ment includes ‘any attachments by a cable television 
system.’ ” Pet. App. 90a (emphasis added). The Com- 
mission noted that that conclusion would remain valid 
regardless of whether a cable television system pro- 
viding commingled Internet access is considered to be 
providing “cable service,” “telecommunications ser- 
vice,” or some other form of service. Id. at 89a-90a.3 
Finally, the Commission determined that the 1996 

3 Indeed, because the classification of cable Internet access as 
“cable service,” “telecommunications service,” or some other form 
of service is the subject of ongoing proceedings before the Com- 
mission concerning issues outside the Pole Attachments Act, the 
Commission expressly stated that it “d[id] not intend * * * to 
foreclose any aspect of the Commission’s ongoing examination of 
those issues.” Pet. App. 89a; see pp. 29-31, infra. 

6 

amendments extend the protections of Section 224 to 
wireless carriers no less than to other telecommuni- 
cations carriers. Id. at 91a-96a. 

4. A number of electric utility companies filed 
petitions for review of the FCC’s order in the Third, 
Fourth, Sixth, Eighth, Eleventh, and D.C. Circuits. 
Pet. App. 14a-15a. Pursuant to the FCC’s motion, the 
cases were consolidated in the Eleventh Circuit. Id. at 
15a. In a ruling not at issue before this Court, a panel 
of the court of appeals unanimously held that challenges 
to various aspects of the FCC’s orders under the 
Takings Clause were not ripe. Id. at 18a-19a. See also 
id. at 32a-35a (rejecting challenge to an additional 
portion of FCC Order). In the rulings that are at issue 
in this Court, however, the court of appeals panel 
divided. The majority reversed the FCC’s conclusions 
that the Pole Attachments Act, as amended in 1996, 
authorizes it to regulate pole attachments by cable 
operators that supply Internet access as well as cable 
television service over their wires, id. at 26a-32a, and 
that the Commission has no less authority to regulate 
pole attachments to provide wireless telecommunica- 
tions services than pole attachments to provide wireline 
telecommunications services, id. at 20a-26a. 

a. The court of appeals rejected the FCC’s conclu- 
sion “that Internet service provided by a cable tele- 
vision system * * * is subject to regulation under 
section 224(b)(1)’s mandate to ‘ensure that the rates, 
terms, and conditions [for pole attachments] are just 
and reasonable.’ ” Pet. App. 26a. Although the court 
briefly adverted to the definition of “pole attachment” 
in Section 224(a)(4) of the pre-1996 Pole Attachments 
Act as “any attachment by a cable television system,” 
see id. at 30a n.32, the court did not address the fact 
that that definition continues to define the pole 

7 

attachments subject to the post-1996 Act. Instead, the 
court noted the separate provisions of the amended Act 
that “call[] for the Commission to establish two rates 
for pole attachments.” Id. at 27a. One of those provi- 
sions “applies to ‘any pole attachment used by a cable 
television system solely to provide cable service.’ ” 
Ibid. (quoting 47 U.S.C. 224(d)(3) (Supp. IV 1998)). The 
other “applies to ‘charges for pole attachments used by 
telecommunications carriers to provide telecommuni- 
cations services.’ ” Ibid. (quoting 47 U.S.C. 224(e)(1) 
(Supp. IV 1998)). In the court’s view, “[f ]or the FCC to 
be able to regulate the rent for an attachment that 
provides Internet service then, Internet service must 
qualify as either a cable service or a telecommunica- 
tions service.” Ibid. Notwithstanding that the FCC 
had expressly declined to rule on the correct categoriza- 
tion of Internet access provided through cable modems, 
see pp. 29-30, supra, the court concluded that such 
Internet access is neither cable service, Pet. App. 27a- 
31a, nor telecommunications service, id. at 31a, and that 
the FCC therefore has no authority to regulate rates 
for pole attachments by cable operators that carry both 
cable television and Internet access through the same 
wires. See id. at 31a-32a, 30a n.32. 

b. With respect to wireless telecommunications ser- 
vice, the amended Pole Attachments Act, as noted 
above, provides that the FCC shall ensure “just and 
reasonable” “rates, terms, and conditions” for “pole 
attachments,” 47 U.S.C. 224(b)(1), and it defines “pole 
attachment” to mean “any attachment by a cable televi- 
sion system or provider of telecommunications service 
to a pole, duct, conduit, or right-of-way owned or con- 
trolled by a utility.” 47 U.S.C. 224(a)(4) (1994 & Supp. 
IV 1998) (emphasis added). Other subsections of the 
Act provide, inter alia, that the Commission “shall 

8 

* * * prescribe regulations” based on specified cost- 
apportionment formulas “to govern the charges for pole 
attachments used by telecommunications carriers to 
provide telecommunications services,” 47 U.S.C. 
224(e)(1) (Supp. IV 1998), and that “[a] utility shall 
provide * * * any telecommunications carrier with 
nondiscriminatory access to any pole, duct, conduit, or 
right-of-way owned or controlled by it,” 47 U.S.C. 
224(f)(1) (Supp. IV 1998).4 
The court of appeals rejected the FCC’s position, see 
Pet. App. 91a-96a, that an attachment by a wireless 
telecommunications provider, no less than an attach- 
ment by a wireline provider, is an “attachment by a 

* * * provider of telecommunications service” within 
the meaning of the Act. The court stated: 

Section 224(a)(4) defines a pole attachment as “any 
attachment by a cable television system or provider 
of telecommunications service to a pole, duct, con- 
duit, or right-of-way owned or controlled by a 
utility.” A utility, according to section 224(a)(1) is 
“any person . . . who owns or controls poles, ducts, 
conduits, or rights-of-way used, in whole or in part, 
for any wire communications.” Read in combination, 
these two provisions give the FCC authority to 
regulate attachments to poles used, at least in part, 
for wire communications, and by negative implica- 

4 For purposes of the Pole Attachments Act, as well as other 
provisions of Title 47, the term “ ‘telecommunications’ means the 
transmission, between or among points specified by the user, of 
information of the user’s choosing.” 47 U.S.C. 153(43) (Supp. IV 
1998). In turn, “ ‘telecommunications carrier’ means any provider 
of telecommunications services,” 47 U.S.C. 153(44) (Supp. IV 1998), 
and the term “ ‘telecommunications service’ means the offering of 
telecommunications for a fee directly to the public * * *, 
regardless of the facilities used,” 47 U.S.C. 153(46) (Supp. IV 1998). 

9 

tion does not give the FCC authority over attach- 
ments to poles for wireless communications. 

Id. at 21a-22a (footnotes omitted). In the court’s view, 
“[t]he statutory language of section 224 itself prohibits 
the FCC from regulating pole attachments for wireless 
communications; thus, we may end our review with that 
language.” Id. at 22a n.25. 

The court added that the “original purpose behind 
regulating utility poles” was “to prevent the telephone 
and power companies from charging monopoly rents to 
connect to their bottleneck facilities.” Pet. App. 24a 
(footnote omitted). The court stated that the utilities’ 
“poles are not bottleneck facilities for wireless sys- 
tems,” since their attachments could be placed “on any 
tall building,” and wireless networks may “continue 
working if one antenna malfunctions.” Id. at 25a. The 
court concluded that, because “utility poles are not 
bottleneck facilities for wireless systems,” and “because 
the 1996 Act deals with wire and cable attachments to 
bottleneck facilities, the act does not provide the FCC 
with authority to regulate wireless carriers.” Ibid. 

c. Judge Carnes dissented. In his view “the statute 
unambiguously gives the FCC regulatory authority 
over wireless telecommunications service and Internet 
service.” Pet. App. 41a. 

With respect to cable television operators that 
provide Internet access through cable modems, Judge 
Carnes reasoned that the majority’s conclusion that 
such Internet access “is neither a cable service nor a 
telecommunications service, and is thus not covered by 
the rate formulas described in section 224(d) for ‘solely’ 
cable services and in section 224(e) for telecommuni- 
cations services * * * fails to address the section 
224(b)(1) mandate that the FCC ‘regulate the rates, 

10 

terms, and conditions for pole attachments.’ ” Pet. App. 
39a. He explained that “[b]ecause pole attachment is 
defined as ‘any attachment,’ * * * section 224(b)(1) 
requires the FCC to ensure just and reasonable rates 
for all pole attachments, including those used to provide 
Internet service.” Id. at 39a-40a. 

With respect to wireless telecommunications ser- 
vices, Judge Carnes relied again on the fact that “pole 
attachment” is defined as “any attachment by a * * * 
provider of telecommunications service to a pole, duct, 
conduit, or right-of-way owned or controlled by a 
utility.” Pet. App. 37a. In his view, “[a]pplying that 
definition * * *, the FCC has the authority to 
regulate all attachments, i.e., attachments ‘of whatever 
kind,’ by a * * * provider of telecommunications 
service.” Id. at 38a (citation omitted). Although the 
majority had relied on the statutory definition of 
“utility,” Judge Carnes explained that that definition 
“serves merely to exempt from mandatory access any 
utility that does not make its poles available for wire 
communications at all.” Ibid. But “once a utility makes 
its poles available, even ‘in part,’ for wire communica- 
tions, it is subject to mandatory access for all pole 
attachments.” Ibid. In sum, “[n]othing about the 
definition of utility negates the FCC’s mandate to 
regulate rates for all pole attachments.” Id. at 38a-39a. 

5. The government and other parties sought re- 
hearing en banc. The court of appeals denied that re- 
quest in a short per curiam order. Pet. App. 44a. Judge 
Carnes filed a statement concerning the denial of re- 
hearing en banc. He observed that “five of the twelve 
judges in active service on this Court are disqualified 
from participating in this important case.” Id. at 46a. 
That fact, he explained, made it nearly automatic that 
the court would deny the government’s rehearing en 

11 

banc petition, because, under Eleventh Circuit prece- 
dent, the court could not grant such a petition without 
the support of a majority of “all active circuit judges 
serving on the court at the time of the poll including 
those judges who are disqualified from participating,” 
and such a majority could not be obtained without the 
participation of the author of the panel majority’s 
opinion. Id. at 45a. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

The court of appeals held that the rate protections of 
the Pole Attachments Act do not apply to cable tele- 
vision systems that provide Internet access in addition 
to cable television programming over their wires and 
that those protections do not apply in full (and, under 
one interpretation, do not apply at all) to providers of 
wireless telecommunications services. Both of those 
holdings are wrong. In both rulings, the court of 
appeals not only contradicted the most natural reading 
of the text of the Act, but also rejected the interpreta- 
tion of the Act adopted by the FCC, the agency charged 
with implementing it. The court of appeals’ decision 
would thereby impede the achievement of national com- 
munications policy objectives that Congress embodied 
in the Telecommunications Act of 1996. 

I. The coverage provisions of the Pole Attachments 
Act provide that the FCC “shall regulate” the rates for 
“pole attachments,” 47 U.S.C. 224(b)(1), and define 
“pole attachments” as “any attachment by a cable tele- 
vision system or provider of telecommunications ser- 
vice,” 47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998) 
(emphasis added). An attachment by a cable television 
system that is used to provide commingled cable televi- 
sion service and Internet access is an attachment “by a 
cable television system.” Such an attachment is 

12 

accordingly protected by the Act. Other provisions of 
the Act demonstrate that when Congress wanted to 
exclude certain categories of pole attachments from the 
otherwise broad terms of the Act, it did so explicitly. 
Because Congress did not explicitly exclude attach- 
ments used to provide cable television service when 
they are used to provide commingled Internet access as 
well, it is clear that the Act protects such attachments. 

Congress had sound policy reasons not to accept the 
rule adopted by the court of appeals, which would in 
effect penalize cable television systems for providing 
commingled Internet access by removing their attach- 
ments from the Act’s protections as soon as such access 
is provided. Two provisions of the Telecommunications 
Act of 1996 state Congress’s intent to encourage the 
development of broadband access and to promote the 
continued development of the Internet. Those pur- 
poses are consistent with a regime in which cable tele- 
vision systems can provide commingled Internet access 
without suffering a financial penalty; they are not 
consistent with the regime envisioned by the court of 
appeals, in which cable television systems are in effect 
penalized as soon as they invest in providing broadband 
Internet access as well as cable television service to 
their subscribers. 

The court of appeals believed that two other provi- 
sions of the Act added in 1996, which provide specific 
rate structures for pole attachments used “solely to 
provide cable service” and for pole attachments used 
“to provide telecommunications services,” narrowed the 
general mandate to the FCC to ensure just and reason- 
able rates for any attachment by a cable television 
system. That conclusion is mistaken. The two rate 
provisions do not purport to amend the Act’s basic 
coverage provisions, which were broadened, not nar- 

13 

rowed, by the 1996 amendments. Each of the two rate 
provisions can be given its full scope in governing rates 
for the particular services covered without upsetting 
the general and express mandate of the Act that all 
pole attachments by cable television systems are 
protected by the Act. 

Finally, insofar as any doubt may remain regarding 
the scope of the Act, the FCC’s determination that the 
Act protects attachments used to provide commingled 
cable television service and Internet access is entitled 
to deference. Congress delegated to the FCC the 
authority to implement both the Pole Attachments Act 
and the Communications Act of which it is a part, and 
this Court has repeatedly held that courts must defer to 
the FCC’s reasonable constructions of the Communica- 
tions Act. The FCC’s construction of the Act in this 
case is based on its most natural reading and the 
policies that underly it. That construction is therefore 
at the very least reasonable. Accordingly, it should be 
controlling. 

II. The court of appeals also erred in holding that 
the Pole Attachments Act provides limited or no pro- 
tection for wireless—as opposed to wireline—telecom- 
munications service. As noted above, the Act defines a 
covered pole attachment to include “any attachment by 
a * * * provider of telecommunications service.” 
47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998). That 
definition makes no distinction between providers of 
wireless telecommunications service and providers of 
wireline telecommunications service. Moreover, the 
Act’s definition of “[t]elecommunications service”— 
applicable both to the Pole Attachments Act and to the 
Communications Act as a whole—expressly precludes 
any such distinction based on the type of facility used to 
provide the service; it defines such service as the 

14 

offering of telecommunications directly to the public 
“regardless of the facilities used.” 47 U.S.C. 153(46) 
(Supp. IV 1998) (emphasis added). 

The court of appeals reasoned that attachments used 
to provide wireless services were excluded from the full 
protection of the Act because the only poles covered by 
the Act are those “owned or controlled by a utility,” 
47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998), and the 
term “utility” is defined as a company that owns poles 
“used, in whole or in part, for any wire communica- 
tions.” 47 U.S.C. 224(a)(1) (1994 & Supp. IV 1998). 
Those definitions, however, concern which poles are 
subject to the Act. Once it is determined (as is not in 
dispute in this case) that certain poles are subject to the 
Act because they are used for wire communications, the 
Act makes no further distinction based on whether the 
attachments to those poles are used to provide wireless 
or wireline telecommunications service. Rather, as 
noted above, if an “attachment” is made “by a provider 
of telecommunications service,” it is protected by the 
Act. It makes no difference whether the attaching 
entity uses wireless, wireline, or some hybrid type of 
facility to provide the telecommunications service. 

The court of appeals supported its exclusion of 
attachments for wireless telecommunications services 
by finding that poles are not “bottleneck facilities” for 
wireless carriers, reasoning that Congress intended the 
Act to address only the chokehold that telephone and 
power companies have over bottleneck facilities. The 
terms of the Act, however, nowhere refer to “bottle- 
neck facilities,” and Congress deliberately chose not to 
entangle questions of coverage under the Act in conten- 
tious disputes about which poles are “bottleneck 
facilities.” Accordingly, it is the unqualified term “pro- 
vider of telecommunications service,” not a court’s 

15 

conception of what constitutes a “bottleneck facility,” 
that defines the scope of the Act’s protections. Since 
the term “provider of telecommunications service” 
extends to providers of wireless service, the coverage 
of the Act extends to them as well. 

ARGUMENT 

I. THE POLE ATTACHMENTS ACT PROTECTS 
POLE ATTACHMENTS BY CABLE TELEVISION 
SYSTEMS THAT PROVIDE COMMINGLED CABLE 
TELEVISION SERVICE AND INTERNET ACCESS 

A. Section 224 By Its Terms Protects Attachments To 

Provide Commingled Cable Television And 

Internet Access 

1. Section 224(b)(1) of the Pole Attachments Act 
authorizes the FCC to “regulate the rates, terms, and 
conditions for pole attachments to provide that such 
rates, terms, and conditions are just and reasonable.” 
47 U.S.C. 224(b). That language defines the FCC’s 
jurisdiction unambiguously. If an item is a “pole 
attachment[],” then the FCC has jurisdiction to regu- 
late the “rates, terms, and conditions” for it. If an item 
is not a “pole attachment[],” Section 224 does not pro- 
vide the FCC with jurisdiction to regulate its rates, 
terms, or conditions. 

Section 224(a)(4) defines the term “pole attachment.” 
It provides that 

[t]he term ‘pole attachment’ means any attachment 
by a cable television system or provider of tele- 
communications service to a pole, duct, conduit, or 
right-of-way owned or controlled by a utility. 

47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998). When that 
definition is read together with Section 224(b)’s grant of 
jurisdiction to the FCC, the result is that if an item is 

16 

an “attachment by a cable television system * * * to a 
pole, duct, conduit, or right-of-way owned or controlled 
by a utility,” then the FCC has jurisdiction to regulate 
the “rates, terms, and conditions” for it.5 

2. In the order under review in this case, the FCC 
addressed the question whether “a cable system is 
entitled to a Commission-regulated rate for pole attach- 
ments that the cable system uses to provide commin- 
gled data and video.” Pet. App. 85a. In that situation, 
cable television service and Internet access are routed 
through the same pole attachments—indeed, through 
the same wires at the same time. See BCI Telecom 
Holding, Inc. v. Jones Intercable, Inc., 3 F. Supp. 2d 
1165, 1170-1172 (D. Colo. 1998). Such pole attachments 
—just like attachments used solely to provide cable 
television images—are clearly attachments “by a cable 
television system.” Accordingly, such pole attachments 
are subject to the protections of the Act. As the FCC 
explained, because the definitional provisions of the 
Pole Attachments Act cited above do not “turn on what 
type of service the attachment is used to provide” so 
long as it is by a “cable television system,” Pet. App. 
85a, the terms of the Pole Attachments Act require that 
“the rates, terms and conditions for all pole attach- 
ments by a cable television system are subject to” FCC 
jurisdiction. Id. at 86a. 

3. “As in any case of statutory construction, [the] 
analysis begins with the language of the statute. * * * 
And where the statutory language provides a clear 
answer, it ends there as well.” Hughes Aircraft Co. v. 

5 Except where otherwise specified, we use the term “pole” to 
refer to any of the items to which a “pole attachment” may be 
made under Section 224(a)(4)—i.e., a “pole, duct, conduit, or right- 
of-way.” 

17 

Jacobson, 525 U.S. 432, 438 (1999) (citation and internal 
quotation marks omitted). The terms of Section 224(a) 
and (b) of the Pole Attachments Act are exceptionally 
clear in granting the FCC jurisdiction to regulate pole 
attachment rates for commingled cable television and 
Internet service. That clarity is emphasized by two 
other provisions of the Act that do exclude certain pole 
attachments from the jurisdiction conferred on the 
FCC. Those provisions demonstrate that Congress was 
quite precise in defining the scope of the Act and fully 
capable of limiting that scope where it saw fit. No such 
limitation applies to attachments used to provide com- 
mingled cable television service and Internet access. 

a. Section 224(c) provides that “[n]othing in this 
section shall be construed to apply to, or to give the 
Commission jurisdiction with respect to * * * pole 
attachments in any case where such matters are 
regulated by a State.” 47 U.S.C. 224(c)(1) (1994 & 
Supp. IV 1998). A state regulatory program ousts the 
Commission of jurisdiction under that provision only if 
the program satisfies certain statutory requirements.6 
If the State satisfies those conditions, the FCC has no 
jurisdiction over attachments in that State. See States 
That Have Certified That They Regulate Pole Attach- 
ments, 7 F.C.C.R. 1498 (1992) (public notice that FCC 
has no jurisdiction over pole attachments in 19 jurisdic- 
tions that have certified that they satisfy the Section 
224(c) conditions). 

6 For example, the State’s regulatory program must “consider 
the interests of * * * the subscribers of the services offered via 
such attachments” as well as the interests of utility consumers, 
47 U.S.C. 224(c)(2)(B) (1994 & Supp. IV 1998), and the State’s pro- 
gram must provide prompt action on complaints, 47 U.S.C. 
224(c)(3)(B). 

18 

b. Section 224(a)(5) provides that “[f]or purposes of 
[the Pole Attachments Act], the term ‘telecommuni- 
cations carrier’ * * * does not include any incumbent 
local exchange carrier.” 47 U.S.C. 224(a)(5) (Supp. IV 
1998).7 Because no incumbent local exchange carrier 
(ILEC) is a “telecommunications carrier,” no ILEC can 
be a “provider of telecommunications service” for pur- 
poses of the definition of “pole attachment” in Section 
224(a)(4). Consequently, as the Commission explained, 
an “ILEC has no rights under Section 224 with respect 
to the poles of other utilities.” Pet. App. 63a. Congress 
had long ago found when it first enacted the Pole 
Attachments Act that “poles, ducts, and conduits are 
usually owned by telephone and electric power utility 
companies, which often have entered into joint use or 
joint ownership agreements.” S. Rep. No. 580, supra, 
at 12 (emphasis added); see also ibid. (noting that 
agreements between telephone and electric utilities 
usually provide that “communications pole space is 

* * * under the control of the telephone company”). 
The evident purpose of the Section 224(a)(5) exclusion 
of ILECs is that there was no need to provide rate 
protection to entities that usually owned or controlled 
the poles themselves. 

c. Sections 224(a)(5) and 224(c) demonstrate that 
Congress knew precisely how to limit the reach of the 
FCC’s jurisdiction and the types of pole attachments 
covered by the Act when it wanted to do so. Aside 

7 An “incumbent local exchange carrier” is elsewhere specified 
to be the carrier that provided local telephone service in a given 
area, typically on a monopoly basis, as of February 8, 1996. 
47 U.S.C. 251(h) (Supp. IV 1998). A firm newly attempting to 
compete in providing telephone service in a local area is generally 
not an ILEC. 

19 

from those exclusions, however, the Act has no other 
exclusions. “[A]ny attachment” to a utility pole by a 
cable television system—including an attachment used 
to provide commingled cable television and Internet 
access—is protected by the Act. 

4. Finally, the court of appeals’ construction is also 
inconsistent with Section 224(f)(1), which provides that 
“[a] utility shall provide a cable television system or 
any telecommunications carrier with nondiscriminatory 
access to any pole, duct, conduit, or right-of-way owned 
or controlled by it.” 47 U.S.C. 224(f )(1) (Supp. IV 1998). 
That provision grants an unqualified right of access to 
cable systems and telecommunications carriers without 
regard to whether they provide additional services. 
Such a right of access would be futile if the utility were 
free to price some of those competing service providers 
out of the market, as the utility would be free to do to 
cable systems under the court of appeals’ decision. A 
power to regulate rates narrower than the statutory 
grant of access does not make sense. 

B. Congress Had Sound Policy Reasons For Including 

Commingled Cable Television Service And Internet 

Access In The Act’s Protections 

Under the court of appeals’ decision, the full 
protections of the Act apply to attachments by a cable 
television system that are used solely to provide con- 
ventional cable television programming to its cus- 
tomers. But as soon as the cable television system uses 
its wires to provide additional services—such as 
Internet access—to those customers as well, the Act’s 
protections would cease and the utilities that own or 
control the poles could charge whatever rates they wish 
for the pole attachments. That result is not only 
contrary to the plain meaning of the Pole Attachments 

20 

Act, but it is inconsistent with the congressional policy 
underlying the Telecommunications Act of 1996, which 
was designed in part to encourage the rapid develop- 
ment of inexpensive broadband Internet access. That 
policy is most clearly manifested in two provisions of 
the Telecommunications Act—which included the 1996 
amendments to the Pole Attachments Act. 

First, Congress in the Telecommunications Act 
directed the FCC to “encourage the deployment” of 
broadband capability to all Americans and, if necessary, 
to “take immediate action to accelerate deployment of 
such capability by removing barriers to infrastructure 
investment.” See Pub. L. No. 104-104, Tit. VII, 
§ 706(a), (b) and (c)(1), 110 Stat. 153 (47 U.S.C. 157 
note). Under the FCC’s interpretation of the Pole 
Attachments Act, cable television systems, which 
already have wires connected to many American 
homes, may upgrade their facilities to provide commin- 
gled Internet access while retaining their protections 
against monopolistic pricing under the Pole Attach- 
ments Act. That will certainly “encourage the develop- 
ment” of broadband capability and “remov[e] barriers 
to infrastructure development” by the cable industry to 
provide such capability. By contrast, under the court of 
appeals’ decision, cable television providers would lose 
their protection from monopolistic prices for pole 
attachments as soon as they upgrade their facilities to 
provide commingled Internet access to their customers. 
That would discourage the rapid development of broad- 
band capability, contrary to Congress’s expressed 
policy. 

Second, Congress declared in the Telecommunica- 
tions Act that “[i]t is the policy of the United States 

* * * to promote the continued development of the 
Internet and other interactive computer services and 

21 

other interactive media.” Pub. L. No. 104-104, Tit. V, 
§ 509, 110 Stat. 138 (47 U.S.C. 230(b)(1) (Supp. IV 
1998)). The FCC’s interpretation of the Act, which 
permits cable television providers to add commingled 
Internet access to the services they offer, would make 
such access more widely available, and it would thus 
“promote the continued development of the Internet.” 
By contrast, the court of appeals’ decision would permit 
cable television systems to enter the market for 
broadband Internet access to their existing customers 
only at the cost of losing the rate protections they 
currently enjoy for their pole attachments. That would 
provide a disincentive for cable providers to enter the 
market for broadband Internet access, and it would 
thereby retard—not promote—the continued develop- 
ment of the Internet.8 

8 Indeed, as utilities themselves increasingly enter the market 
for provision of Internet access, they have an incentive not only to 
charge monopolistic prices for pole attachments, but also to 
discriminate against their cable company competitors with respect 
to the terms and conditions of access to the bottleneck facilities at 
issue here. See In re Promotion of Competitive Networks in Local 
Telecommunications Markets, 14 F.C.C.R. 12,673, 12,681 (1999) 
(para. 12) (noting that “companies offering or planning to offer 
two-way broadband services to residential consumers include * * 

* public utilities within their utility service territories”); In re 
Inquiry Concerning the Deployment of Advanced Telecommuni- 
cations Capability to All Americans in a Reasonable and Timely 
Fashion, and Possible Steps to Accelerate Such Deployment 
Pursuant to Section 706 of the Telecommunications Act of 1996, 14 
F.C.C.R. 2398, 2427 (1999) (para. 55) (“A growing number of public 
utilities are offering broadband within their utility service 
territories. * * * Utility-based offerings have begun in major 
northeastern cities, San Francisco, and have begun or are under 
study in smaller cities.”). 

22 

C. The Act’s Special Rate Provisions For Attachments 

“Used * * * Solely To Provide Cable Service” Or 

Attachments “Used By Telecommunications Carriers 

To Provide Telecommunications Services” Do Not 

Restrict The Basic Coverage Of The Act 

The court of appeals did not dispute that, prior to the 
1996 amendments, the Pole Attachments Act applied to 
attachments used to provide commingled cable televi- 
sion and Internet access. The FCC had concluded that 
the unamended Act applied to such attachments in a 
decision that was affirmed by the D.C. Circuit in 1993 in 
Texas Utilities Electric Co. v. FCC, 997 F.2d 925. In 
this case, the Eleventh Circuit distinguished Texas 
Utilities on the ground that it was decided “before the 
1996 amendments were enacted,” Pet. App. 30a n.32, 
and the court relied for its contrary conclusion solely on 
two provisions that were part of the 1996 amendments. 
See id. at 27a (FCC’s position “requires us to disregard 
the unambiguous language of the 1996 Act”) (emphasis 
added), 32a (“[T]he 1996 Act does not authorize the 
FCC to regulate pole attachments for Internet 
service.”) (emphasis added). Those provisions do not 
support the court’s result. 

1. a. The first provision relied on by the court of 
appeals was Section 224(d). In the original Act, Section 
224(d) specified certain characteristics of what consti- 
tutes a “just and reasonable rate” for pole attachments 
by cable television systems (which were the only pole 
attachments covered by the Act at that time). Essen- 
tially, it provided that a “just and reasonable” rate for 
such attachments is at least the “marginal cost of 
attachments,” see Florida Power, 480 U.S. at 253, and 
at most the percentage of the total pole expenses equal 
to the percentage of usable space on the pole occupied 
by the attachment, or the “fully allocated cost” of the 

23 

construction and operation of the pole to which cable is 
attached, ibid. See generally 47 U.S.C. 224(d)(1). 

The 1996 amendments made no change to Section 
224(d)(1) and (2), which specify the rate methodology. 
They added, however, a new Section 224(d)(3), which 
provides that “[t]his subsection shall apply to the rate 
for any pole attachment used by a cable television sys- 
tem solely to provide cable service.” 47 U.S.C. 224(d)(3) 
(Supp. IV 1998).9 The 1996 amendments thus require 
the Commission to grandfather pole attachments for 
cable systems used “solely to provide cable service” 
into the preexisting rate structure for attachments. 
Under the amended Act, the Commission may not 
determine that pole attachments for such systems are 
subject to any higher (or lower) rate. 

b. The second provision relied on by the Eleventh 
Circuit is Section 224(e). That provision was added by 
the 1996 amendments. The 1996 amendments had for 
the first time expanded the basic definition of “pole 
attachment”—and, accordingly, the scope of the Act’s 
protections—beyond cable television systems to include 
“any attachment * * * by a provider of tele- 
communications service.” 47 U.S.C. 224(a)(4) (1994 & 
Supp. IV 1998). The new Section 224(e) addressed the 

9 Section 224(d)(3) also includes an interim rule providing that, 
until the FCC could promulgate new regulations under a newly 
added subsection (e), “this subsection shall also apply to the rate 
for any pole attachment used by a cable system or any telecom- 
munications carrier * * * to provide any telecommunications 
service.” 47 U.S.C. 224(d)(3) (Supp. IV 1998). In a portion of the 
order under review that is not challenged in this case, the FCC 
promulgated the new regulations to which Section 224(d)(3) refers. 
See Pet. App. 59a, 64a-65a, 79a-162a. This part of Section 224(d)(3) 
accordingly has no continuing effect. 

24 

content of the rates for this newly protected class of 
attachments. 

In particular, Section 224(e)(1) requires the Commis- 
sion to “prescribe regulations * * * to govern the 
charges for pole attachments used by telecommunica- 
tions carriers to provide telecommunications services.” 
47 U.S.C. 224(e)(1) (Supp. IV 1998). The “just, reason- 
able, and nondiscriminatory rates” provided for in such 
regulations must satisfy certain requirements distinct 
from those of Section 224(d). The new formula, speci- 
fied in Section 224(e)(2) and (3), can be quite complex. 
As the Commission explained in its order, it “allocates 
the costs of the portion of the total pole cost associated 
with the usable portion of the pole and the portion of 
the total pole cost associated with the unusable portion 
of the pole in a different manner.” Pet. App. 66a. 
Essentially, Section 224(e) “apportion[s] the cost of the 
space other than the usable space equally among all 

* * * attachments” and “apportion[s] the cost of the 
usable space according to the percentage of usable 
space required for each entity.” H.R. Conf. Rep. No. 
458, 104th Cong., 2d Sess. 206 (1996). 

Since the Section 224(e) rate includes an allocation 
for unusable as well as usable space on the pole, it will 
generally be higher than the rate applicable to pole 
attachments used “solely to provide cable service” 
under Section 224(d). At the time the 1996 Act was 
passed, Congress expected cable operators to go into 
competition with local telephone companies almost 
immediately. See H.R. Conf. Rep. No. 458, supra, at 
148. Section 224(e) thus requires the Commission to 
level the competitive playing field in the telecommuni- 
cations area as between cable companies that choose to 
provide conventional telecommunications services and 
other carriers providing such service; the rate 

25 

prescribed by Section 224(e) applies in both situations. 
See H.R. Conf. Rep. No. 458, supra, at 206; S. Rep. No. 
367, 103d Cong., 2d Sess. 65 (1994). 

2. The court of appeals read these two provisions— 
Section 224(d) and (e)—to embody a new limitation on 
the FCC’s jurisdiction, such that a pole attachment 
used to provide services that fall within neither provi- 
sion is excluded from the basic “just and reasonable 
rate” protections of the Act in Section 224(a) and (b). In 
the court’s view, “subsections (d) and (e) narrow (b)(1)’s 
general mandate to set just and reasonable rates.” Pet. 
App. 27a n.29. The court stated that “[t]he straight- 
forward language of subsections (d) and (e) directs the 
FCC to establish two specific just and reasonable rates, 
one for cable television systems providing solely cable 
service and one for telecommunications carriers pro- 
viding telecommunications service; no other rates are 
authorized.” Ibid. After reaching its own conclusion 
that Internet access does not qualify either as 
“solely cable television service” or “telecommunications 
service”—an issue expressly left open by the FCC, see 
id. at 89a—the court ruled that commingled cable 
television service and Internet access is therefore 
outside the FCC’s jurisdiction. 

3. The court of appeals’ conclusion is mistaken. At 
the most basic level, neither Section 224(d) nor Section 
224(e) alters the coverage provisions of the Act in 
Section 224(a) and (b). Indeed, the only amendment to 
those coverage provisions made in 1996 served to 
broaden the definition of “pole attachment” to include 
not merely “any attachment by a cable television sys- 
tem,” but rather “any attachment by a cable television 
system or provider of telecommunications service.” 
47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998) (emphasis 
added). That change was a pure extension—not a 

26 

narrowing—of the Act’s protections. See H.R. Conf. 
Rep. No. 458, supra, at 206 (amendment, which 
originated in House version of bill, “expands the scope 
of the coverage of section 224”). Had Congress intended 
to limit the FCC’s authority over attachments to 
provide cable television service, it surely would have 
expressed that intention in either the basic regulatory 
mandate of Section 224(b)(1) or the definitions in 
Section 224(a). It did neither. 

For that reason, the court of appeals erred in stating 
that, aside from the rates for attachments used “solely 
to provide cable service” (Section 224(d)) and those 
used to provide “telecommunications services” (Section 
224(e)), “no other rates are authorized.” Pet. App. 27a 

n.29. Section 224(b)(1) expressly authorizes the FCC to 
ensure “just and reasonable” rates for all items defined 
as “pole attachments” in Section 224(a)(4)—even those 
that fall outside the categories in Section 224(d) and (e). 
For attachments by a cable television system that fall 
outside those categories, Congress has not further 
specified the content of the rates. But Congress none- 
theless authorized the FCC in Sections 224(a) and (b) to 
ensure that they are “just and reasonable.” 

10 

4. Nor is there anything in Section 224(d) and (e) 
that purports to “narrow [Section] (b)(1)’s general man- 
date to set just and reasonable rates” for pole attach- 
ments. Pet. App. 27a n.29. Those provisions each 
address a different issue—the specification of what 

10 In a ruling not at issue in this case, the FCC carried out its 
mandate to ensure that rates for commingled cable television ser- 
vice and Internet access are “just and reasonable” by providing 
that such rates would be the same as the Section 224(d) rates for 
attachments used solely to provide cable service. See Pet. App. 
87a-90a. 

27 

constitutes a “just and reasonable” rate for particular 
categories of pole attachments. Section 224(d)(1), for 
example, begins by stating that “a rate is just and 
reasonable” if it satisfies certain conditions, and Section 
224(d)(3) provides that “[t]his subsection shall apply to 
the rate” for pole attachments used “solely to provide 
cable service.” 47 U.S.C. 224(d)(3) (Supp. IV 1998). 
Section 224(d) thus unambiguously requires the FCC to 
set rates for pole attachments used “solely to provide 
cable service” within the statutory parameters. While 
Section 224(d) therefore dictates the contents of some 
rates, it does not have anything to do with excluding 
rates for other attachments from the protections of the 
Pole Attachments Act altogether. 

Similarly, Section 224(e) requires the FCC to pre- 
scribe regulations “to govern the charges for pole 
attachments used by telecommunications carriers 
to provide telecommunications services.” 47 U.S.C. 
224(e)(1) (Supp. IV 1998). It goes on, unambiguously, to 
require the FCC to set rates for such pole attachments 
within certain statutory parameters. Like Section 
224(d), however, it contains nothing suggesting any 
withdrawal of the FCC’s power to regulate rates for 
other pole attachments. 

D. The Court Of Appeals’ Construction Of The Act 

Disregarded Settled Principles Under Which The 

FCC’s Construction Of The Communications Act Is 

Entitled To Deference 

1. We have demonstrated that the text and purpose 
of the Pole Attachments Act both require reversal of 
the court of appeals’ conclusion. If any doubt remained 
on the subject, however, the fact that the FCC has 
construed the Act to govern rates for pole attachments 

28 

for commingled cable television service and Internet 
access would eliminate it. 

There can be no doubt that Congress has delegated 
to the FCC the authority to implement the Pole 
Attachments Act. The Act itself is framed as a grant of 
ratemaking authority to the Commission in Section 
224(b)(1), and another portion of that same Section 
provides that “[t]he Commission shall prescribe by rule 
regulations to carry out the provisions of this section.” 
47 U.S.C. 224(b)(2). In addition to that specific 
authority, the Pole Attachments Act is a part of the 
Communications Act of 1934. See 92 Stat. 35 (originally 
enacting the Pole Attachments Act by providing that 
“the Communications Act of 1934 is amended by adding 
at the end thereof the following new section”). As this 
Court noted in AT&T v. Iowa Utilities Board, 525 U.S. 
366, 377 (1999), Section 201(b) of the Communications 
Act provides that “[t]he Commission may prescribe 
such rules and regulations as may be necessary in the 
public interest to carry out the provisions of [the 
Communications Act of 1934].” 47 U.S.C. 201(b). Thus, 
there is more than ample basis to conclude that 
Congress entrusted the FCC with authority to imple- 
ment and construe the Pole Attachments Act. 

This Court has acknowledged that the Commission’s 
reasonable resolutions of any ambiguities in the Com- 
munications Act (and, hence, the Pole Attachments Act 
which forms a part of it) are therefore controlling. In 
Iowa Utilities Board, for example, much of the Court’s 
decision rested on the proposition that the FCC’s 
reasonable interpretations of the Act are entitled to be 
upheld. See, e.g., 525 U.S. at 387 (upholding an FCC 
definition of a statutory term because it is “eminently 
reasonable”), 394 (upholding FCC rule because “we 
cannot say that [the rule] unreasonably interprets the 

29 

statute”). As the Court summarized, “Congress is well 
aware that the ambiguities it chooses to produce in a 
statute will be resolved by the implementing agency.” 
Id. at 397 (citing Chevron U.S.A. Inc. v. NRDC, 467 
U.S. 837, 842-843 (1984)). 

If there are any ambiguities with respect to the scope 
of the protections of the Pole Attachments Act, the 
FCC’s reasonable resolution of those ambiguities is 
therefore dispositive. As we have explained above, the 
FCC applied the Act according to its most natural 
interpretation and entirely consistently with the 
policies that underly it to protect attachments used to 
provide commingled cable television service and Inter- 
net access. The FCC’s interpretation is at the very 
least a reasonable one, and it accordingly suffices to 
remove any lingering uncertainty about the scope of 
the Act’s protection. 

2. Because the court of appeals erroneously believed 
that a pole attachment by a cable television system 
receives statutory protection only if it is used to pro- 
vide services falling within one of the two rate catego- 
ries set forth in Section 224(d)(3) and Section 224(e)(1), 
it mistakenly felt compelled to address whether a cable 
company’s provision of Internet access is properly 
characterized as a “cable service,” a “telecommunica- 
tions service,” or an “information service.” See Pet. 
App. 27a-29a. The Commission had based its conclusion 
that attachments to provide commingled cable 
television service and Internet access are protected by 
the Act squarely and exclusively on the broad provi- 
sions and definitions of Section 224(b)(1) and (a)(4). See 
Pet. App. 85a-86a. The Commission specifically 
cautioned that it “need not decide at this time * * * 
the precise category into which Internet services fit,” 
id. at 89a, and the Commission referred to ongoing 

30 

proceedings it had undertaken at Congress’s direction 
that would reconsider its earlier conclusion in another 
proceeding that the provision of Internet access is not 
the provision of telecommunications service, id. at 87a- 
89a. To date, the FCC has taken no position on that 
issue, which has very broad implications for the rights 
and obligations of cable systems—including the excep- 
tionally important question whether a cable operator 
can be compelled to provide unaffiliated Internet ser- 
vice providers with “open access” to its cable facilities. 
See ibid.; see also In re Inquiry Concerning High- 
Speed Access to the Internet Over Cable and Other 
Facilities, 15 F.C.C.R. 19,287, 19,293-19,298 (2000) 
(paras. 14-24) (seeking comment on proper statutory 
classification of high-speed Internet access using cable 
modem technology); In re Federal-State Joint Board on 
Universal Service, 13 F.C.C.R. 11,501, 11,535 n.140 
(1998); but cf. AT&T v. City of Portland, 216 F.3d 871, 
878 (9th Cir. 2000) (holding that “to the extent that [a 
firm] provides its subscribers Internet transmission 
over its cable broadband facility, it is providing a 
telecommunications service as defined in the Com- 
munications Act”). 

Even if the court of appeals were correct that the 
coverage question in this case turns on the correct 
characterization of Internet access, there would still be 
no need for this Court in the first instance to rule on 
that characterization question. If the Court concluded 
that FCC authority over pole attachments by cable 
television systems that provide commingled Internet 
access depended on whether such Internet access is a 
“cable service,” a “telecommunications service,” or 
some other kind of service, the appropriate course for 
this Court would be to remand the case to the FCC— 
the step the court of appeals should itself have taken 

31 

when it ruled (mistakenly) that the characterization of 
Internet access was determinative. Because imple- 
mentation of the Communications Act is entrusted to 
the FCC, it is that agency—not this Court and certainly 
not the court of appeals—that should address the 
characterization issue in the first instance. See IRS v. 
FLRA, 494 U.S. 922, 933 (1990) (citing SEC v. Chenery 
Corp., 318 U.S. 80 (1943)). 

II. THE POLE ATTACHMENTS ACT PROTECTS 
PROVIDERS OF WIRELESS TELECOMMUNICA- 
TIONS SERVICE NO LESS THAN PROVIDERS OF 
WIRELINE TELECOMMUNICATIONS SERVICE 

1. As explained above, the protections of the Pole 
Attachments Act apply to “any attachment by a * * * 
provider of telecommunications service.” 47 U.S.C. 
224(a)(4) (1994 & Supp. IV 1998). “Telecommunications 
service” is defined as the offering of telecommunica- 
tions for a fee directly to the public “regardless of the 
facilities used.” 47 U.S.C. 153(46) (Supp. IV 1998); see 
also 47 U.S.C. 153(43) (Supp. IV 1998) (defining “tele- 
communications”). Congress thus unambiguously 
applied the protections of Section 224 to “any attach- 
ment” by carriers that provide “telecommunications for 
a fee directly to the public * * * regardless of the 
facilities used.” See Pet. App. 95a. As that language 
specifies, the particular facilities used to provide tele- 
communications services—wireless, wireline, or some 
combination of the two—are of no consequence. Con- 
gress could not have been clearer in extending the 
Section 224 protections to attachments used to provide 
wireless telecommunications services to the same 
extent as wireline telecommunications services. 

That conclusion follows as well from Section 224(d)(3) 
of the Act. As we have noted, see p. 23 n.9, supra, that 

32 

provision states that the Section 224(d) rate formula 
“shall apply to the rate for any pole attachment used 
by a cable system or any telecommunications carrier 

* * * to provide any telecommunications service” until 
the FCC could adopt regulations specifically applicable 
to providers of telecommunications services. 47 U.S.C. 
224(d)(3) (Supp. IV 1998) (emphasis added). As the 
FCC recognized, in Section 224(d)(3) as in Section 
224(a)(4), “the use of the word ‘any’ precludes a position 
that Congress intended to distinguish between wire 
and wireless attachments.” Pet. App. 95a. Cf. United 
States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read natu- 
rally, the word ‘any’ has an expansive meaning, that is, 
one or some indiscriminately of whatever kind.”) (inter- 
nal quotation marks and citation omitted). 

2. The court of appeals did not hold that anything in 
the definition of the term “telecommunications service” 
or related terms suggests that it applies only to 
wireline, and not wireless, services. Instead, the court 
of appeals excluded attachments used to provide 
wireless services from the full protection of Section 224 
on the ground that the Pole Attachments Act protects 
only attachments to poles “owned or controlled by a 
utility,” 47 U.S.C. 224(a)(4) (1994 & Supp. IV 1998), and 
that the Act elsewhere defines a “utility” as a company 
that owns poles “used, in whole or in part, for any wire 
communications.” 47 U.S.C. 224(a)(1) (1994 & Supp. IV 
1998) (emphasis added). The court of appeals detected 
a “negative implication” in those provisions, such that 
they “give the FCC authority to regulate attachments 
to poles used, at least in part, for wire communications, 
and * * * do[] not give the FCC authority over 
attachments to poles for wireless communications.” 
Pet. App. 22a. 

33 

There is no relevant “negative implication” in the 
provisions cited by the courts of appeals. To be sure, 
the provision defining “utility” does preclude the FCC 
from regulating the rates for attachments to poles that 
are not used for wire communications. That is not a 
“negative implication” of the statutory text, but rather 
a direct consequence of the fact that authority over 
such poles is nowhere granted to the FCC and that the 
FCC may exercise only authority granted to it by 
Congress. Once a pole owned by an electric or 
telephone company or some other utility is used for 
wire communications, however, it comes within the 
definition of a “pole * * * controlled by a utility” 
under the Act and attachments to it come within the 
Act’s protections. The question whether a particular 
attachment to that pole is covered by the Act turns on 
whether the attachment is made “by a cable television 
system or provider of telecommunications services”—a 
question that has nothing to do with the definition of 
“utility.” 

3. The court of appeals’ misreading of the statutory 
text should be corrected, and further analysis of the 
policy rationales for protecting (or not protecting) 
attachments used for wireless communications are 
largely beside the point. Moreover, the court of 
appeals’ effort to support its result with reference to 
the policies of the Pole Attachments Act is also unper- 
suasive. The court stated that Congress’s purpose in 
passing the Act was “to prevent the telephone and 
power companies from charging monopoly rents to 
connect to their bottleneck facilities.” Pet. App. 24a 
(footnote omitted). The court believed that “[utility] 
poles are not bottleneck facilities for wireless carriers.” 

34 

11 The court concluded that “[b]ecause they are 
not, and because the 1996 Act deals with wire and cable 
attachments to bottleneck facilities, the act does not 
provide the FCC with authority to regulate wireless 
carriers.” Id. at 25a. 

As a legal matter, the terms of Section 224(a)(4) are 
dispositive, regardless of whether those terms extend 
rate protections to a larger class of beneficiaries or 
attachments than the particular subclasses with which 
Congress was most acutely concerned. “[I]t is not, and 
cannot be, [judicial] practice to restrict the unqualified 
language of a statute to the particular evil that 
Congress was trying to remedy.” Brogan v. United 
States, 522 U.S. 398, 403 (1998). The language of the 
Pole Attachments Act uses the unqualified term “pro- 
vider of telecommunications service” to define the 
entities whose attachments are protected by the Act. 
The Act does not use the term “bottleneck facility” 
or any cognate term. Accordingly, it is the unqualified 
statutory term “provider of telecommunications 
service”—not a court’s conception of what constitutes a 
“bottleneck facility”—that controls how far the Act 
extends. Since the term “provider of telecommuni- 
cations service” extends to providers of wireless ser- 
vice, the coverage of the Act extends to them as well. 

As a factual matter, the panel majority was wrong in 
suggesting that utility poles are not “bottleneck 
facilities for wireless systems.” Wireless systems are 

11 In the court’s view, wireless “equipment can be placed on any 
tall building” and the structure of wireless networks limits the 
reliance of such networks on any one antenna. Pet. App. 25a. The 
court did not explain the source for those observations, and a court 
should not rely on such considerations without at the very least 
permitting the FCC to examine the relevant facts in the first 
instance. 

Ibid. 

35 

typically wireless only between the subscriber’s wire- 
less telephone (or, in the case of “fixed wireless” 
systems, between a central location in the subscriber’s 
building) and the nearest receiving antenna. Wireless 
providers often depend on wires attached to poles to 
get their signals from such antennas back to a central 
location, where they are connected to a network that 
may itself include pole-to-pole wireline facilities. 

12 As a 
practical matter, a wireless telecommunications service 
may well depend vitally on poles owned or controlled by 
utilities to provide service to its customers. 

4. The court of appeals’ decision might have rested 
on a misunderstanding of industry realities, and 
perhaps the decision may reasonably be construed not 
to exclude a wireless carrier’s wireline facilities from 
the scope of Section 224. In any event, this Court 

12 In In re Promotion of Competitive Networks in Local Tele- 
communications Markets, 14 F.C.C.R. 12,673 (1999), the FCC 
addressed the need to increase competition for local telephone 
service, including the removal of obstacles to the ability of “ fixed 
wireless” systems to gain access to multi-unit residential and com- 
mercial buildings. The Commission explained that “the prospects 
for facilities-based competition in the near term are especially 
great from providers that can avoid the need to duplicate the in- 
cumbent [provider’s] costly wireline networks, * * * by using 
wireless technology.” Id. at 12,677 (para. 5). Such fixed wireless 
providers frequently mix wireline and wireless elements in their 
networks. For example, “providers using wireless technology may 
need access to rooftops on which to place their antennas, and to 
conduit for laying cable to carry signals from the antenna * * * 
directly to individual units.” Id. at 12,691 (para. 34). See also id. at 
12,686 (para. 25) (noting that”carriers may want to use terrestrial 
wireless technology in lower spectrum bands or satellite technol- 
ogy to offer customers mobility, but use higher-band terrestrial 
wireless service or wireline technology for other features, such as 
broadband interconnectivity, or for transport and termination 
between cell sites and the public switched network.”). 

36 

should make clear that Section 224 by its terms extends 
to “any” attachment by any telecommunications carrier, 
including any and all attachments by providers of wire- 
less telecommunications services. 47 U.S.C. 224(a)(4) 
(1994 & Supp. IV 1998). Even if there were any am- 
biguity in the Act itself, the FCC’s construction of the 
statute as applicable to both wireless and wireline 
telecommunications carriers is at the very least a rea- 
sonable one. Accordingly, that construction should be 
controlling. See AT&T v. Iowa Util. Bd., 525 U.S. at 
377. 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

JANE E. MAGO 

Acting General Counsel 

JOHN E. INGLE 

Deputy Associate General 

Counsel 

GREGORY M. CHRISTOPHER 

Counsel 
Federal Communication 

Commission 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

JOHN M. NANNES 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

ROBERT B. NICHOLSON 
ROBERT J. WIGGERS 

Attorneys 

APRIL 2001