Nos. 00-832 and 00-843 

In the Supreme Court of the United States 

NATIONAL CABLE TELEVISION ASSOCIATION, INC., 
PETITIONER 

v. 
GULF POWER COMPANY, ET AL. 

FEDERAL COMMUNICATIONS 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 

REPLY BRIEF FOR THE FEDERAL PETITIONERS 

JANE E. MAGO 

General Counsel 
Federal Communications 

Commission 
Washington, D.C. 20554 
THEODORE B. OLSON 
Solicitor General 

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

TABLE OF CONTENTS 

Page 

I. Section 224 applies to attachments used for 
delivery of commingled cable television and 
Internet service ............................................................... 
1 

A. The plain terms of the Act protect wires 
used to provide commingled cable television 
service and Internet access ................................... 
1 

B. Subsections (d) and (e), which provide 

parameters for certain pole attachment 
rates, do not purport to—and have been 
reasonably construed by the FCC not to— 

limit the types of attachments protected by 
the Act ....................................................................... 

5 

C. Respondents’ policy arguments are contrary 
to the policies of the Act ........................................ 
8 

II. Section 224 applies to attachments used to 
provide wireless communications ................................ 
11 

A. All parties agree that the Act protects at 

least some attachments by wireless 
providers ................................................................... 11 

B. The Act’s definition of “usable space” does 
not limit its protection for attachments by 
providers of wireless telecommunications 
services ...................................................................... 
12 

C. Respondents’ other arguments should be 

rejected ...................................................................... 16 

(I) 

II 

TABLE OF AUTHORITIES 

Cases: Page 

Capital Cities Cable, Inc. v. Mountain States Tel. 
& Tel. Co., 56 Rad. Reg. 2d (P&F) 393 (1984) ................. 
16 

Cellular Phone Taskforce v. FCC, 205 F.3d 82 
(2d Cir. 2000), cert. denied, 121 S. Ct. 758 (2001) ............. 
3 

FCC v. Florida Power Corp., 480 U.S. 245 (1987) .......... 
10 

National R.R. Passenger Corp. v. Boston & Me. 

Corp., 503 U.S. 407 (1992) ................................................... 

11 

Sims v. Apfel, 530 U.S. 103 (2000) ...................................... 
3 

United Food & Commercial Workers Union Local 
751 v. Brown Group, Inc., 517 U.S. 544 (1996) .............. 
5 

United States v. Mead Corp., 121 S. Ct. 2164 
(2001) ........................................................................................ 20 

Washington Ass’n for Television & Children v. 

FCC, 712 F.2d 677 (D.C. Cir. 1983) ................................... 
3 

Statutes and regulations: 

Communications Act of 1934: 

Tit. I, 47 U.S.C. 151 et seq.: 
47 U.S.C. 153(7) (Supp. V 1999) ................................ 

2 
47 U.S.C. 153(46) (Supp. V 1999) .............................. 
18, 19 

47 U.S.C. 157 note (Supp. V 1999) ........................... 
9 

Tit. II, 47 U.S.C. 201 et seq. ................................................. 
2 

Tit. IV, 47 U.S.C. 401 et seq.: 
47 U.S.C. 405 ................................................................ 
3 

Tit. VI, 47 U.S.C. 601 ............................................................ 
2 

Omnibus Consolidated and Emergency Supplemental 

Appropriations Act, 1999, Pub. L. No. 105-277, 
§ 1403, 112 Stat. 2681-736 (47 U.S.C. 231 (Supp. V 
1999)) ........................................................................................ 10 

Pole Attachments Act, 47 U.S.C. 224 (Supp. V 
1999) ......................................................................................... 16 

47 U.S.C. 224(a) ........................................................ 

5, 6, 7, 13 

47 U.S.C. 224(a)(4) ........................................... 1-2, 4, 7, 10, 18 

III 

Statutes and regulations—Continued: 
Page 

47 U.S.C. 224(a)(5) ............................................................ 
6, 9 

47 U.S.C. 224(b) (1994) ............................................ 
5, 6, 7, 13 

47 U.S.C. 224(c) ................................................................. 
6 

47 U.S.C. 224(d) ............................................. 
5, 6, 7, 8, 10, 12 

47 U.S.C. 224(d)(2) (1994) .............................................. 
12, 13 

47 U.S.C. 224(d)(3) ........................................................... 
5, 8 

47 U.S.C. 224(e) ......................................... 
5, 6, 7, 8, 9, 10, 12 

47 U.S.C. 224(e)(1) ............................................................ 
5 

47 U.S.C. 224(e)(2) ............................................................ 
12 

47 U.S.C. 224(e)(3) ............................................................ 
12 

47 U.S.C. 224(f)(2) ............................................................ 
14 

Telecommunications Act of 1996, Pub. L. No. 104-104, 
110 Stat. 56: 
§ 271, 110 Stat. 86 (47 U.S.C. 271 (Supp. V 
1999)) .......................................................................... 10 

§ 301, 110 Stat. 114 (47 U.S.C. 522(7) (Supp. V 
1999)) .......................................................................... 

2, 3 

§ 509, 110 Stat. 137 (47 US.C. 230 (Supp. V 
1999)) .......................................................................... 
9, 10 

§ 509(b)(2), 110 Stat. 138 (47 U.S.C. 230(b)(2) 
(Supp. V 1999)) ......................................................... 
10 

§ 704(a), 110 Stat. 151: 
(47 U.S.C. 332(c)(7)) (Supp. V 1999) ..................... 
18 

(47 U.S.C. 332(c)(7)(4)) (Supp. V 1999)................. 
18 

47 C.F.R.: 

Section 1.1418(b) ............................................................... 

15, 19 

Section 17.7(a) .................................................................... 
17 

Section 17.7(b) .................................................................... 
17 

Section 17.7(c) .................................................................... 
17 

Section 17.7(d) .................................................................... 
17 

Miscellaneous: 

Adoption of Rules for the Regulation of Cable 

Television Pole Attachments, In re, 72 F.C.C.2d 
59 (1979) ................................................................................... 15 

IV 

Miscellaneous—Continued: Page 

Consolidated Partial Order on Reconsideration, 

FCC 01-170 (May 25, 2001) .................................................. 
15 

H.R. Rep. No. 721, 95th Cong., 1st Sess. Pt. 2 
(1977) ........................................................................................ 17 

NCTA, Cable Television Handbook (2001) (available 
at: http://www.ncta.com/pdf_files/Handbook-Total. 
pdf) ......................................................................................... 4 

In the Supreme Court of the United States 
No. 00-832 
NATIONAL CABLE TELEVISION ASSOCIATION, INC., 
PETITIONER 

v. 
GULF POWER COMPANY, ET AL. 

No. 00-843 
FEDERAL COMMUNICATIONS 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 

REPLY BRIEF FOR THE FEDERAL PETITIONERS 

I. SECTION 224 APPLIES TO ATTACHMENTS USED 
FOR DELIVERY OF COMMINGLED CABLE TELE- 
VISION AND INTERNET SERVICE 

A. The Plain Terms Of The Act Protect Wires Used To 

Provide Commingled Cable Television Service And 

Internet Access 

1. The plain terms of the Pole Attachments Act authorize 
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) (1994). 
The Act also defines “pole attachment” to mean “any attach- 
ment by a cable television system * * * to a pole, duct, con- 
duit, or right-of-way owned or controlled by a utility.” 47 

(1) 

2 

U.S.C. 224(a)(4).1 Therefore, under the precise and unam- 
biguous terms of the Act, if a wire is an “attachment by a 
cable television system,” the FCC has authority “to provide” 
that the rates for the attachment are “just and reasonable.” 
An item attached to a utility pole to provide commingled 
cable television programming and Internet access is an 
“attachment by a cable television system.” Accordingly, the 
FCC has construed the Act to provide that it has authority 
to ensure that rates for such attachments are just and rea- 
sonable. The court of appeals’ conclusion to the contrary is 
inconsistent with the most basic canons of statutory inter- 
pretation and with core principles of deference in admini- 
strative law. 

2. Respondents do not dispute that a wire used to pro- 
vide commingled cable television service and Internet access 
is an “attachment.” Some respondents, however, assert that 
such attachments are not “by a cable television system.” 
E.g., Amer. Elec. Power. Br. 18-22; Atlantic City Elec. Co. 
Br. 23. They refer to the definition of the term “cable sys- 
tem” found at 47 U.S.C. 522(7). In 1996, Congress applied 
that definition, which originally applied only to Title VI of 
the Communications Act (which governs cable television), to 
the Communications Act as a whole, including the Pole 
Attachments Act. See 47 U.S.C. 153(7). The definition 
states that the term “cable system” 

does not include * * * a facility of a common carrier 
which is subject, in whole or in part, to the provisions of 
[Title II of the Communications Act], except that such 
facility shall be considered a cable system * * * to the 
extent such facility is used in the transmission of video 
programming directly to subscribers, unless the extent 
of such use is solely to provide interactive on-demand 
services. 

1 All references to 47 U.S.C. in this brief refer to Supp. V 1999, unless 
otherwise indicated. 

3 

47 U.S.C. 522(7). Respondents argue that “most major cable 
companies are now common carriers subject, in part, to the 
provisions of Title II, through the delivery of residential 
and/or commercial telephone service over the cable 
company’s fiber optic network.” Amer. Elec. Power Br. 20. 
They conclude that cable television systems receive the 
protections of the Pole Attachments Act only “to the extent” 
that their facilities are “used in the transmission of video 
programming directly to subscribers” —and not insofar as 
their facilities are used to provide Internet access. Id. at 21. 

Respondents’ argument is not properly before this Court, 
because respondents did not advance it before the FCC (or, 
for that matter, in the court of appeals). In Sims v. Apfel, 
530 U.S. 103, 107-108 (2000), this Court discussed the doc- 
trine of “administrative issue exhaustion.” Although finding 
the doctrine inapplicable in that case, the Court cited as an 
example of a scheme that does require such exhaustion a 
decision of the D.C. Circuit interpreting Section 405 of the 
Communications Act, 47 U.S.C. 405, “to require complain- 
ants, before coming to court, to give the FCC a ‘fair oppor- 
tunity’ to pass on a legal or factual argument.” Washington 
Ass’n for Television & Children v. FCC, 712 F.2d 677, 681- 
682 & n.6 (1983); accord Cellular Phone Taskforce v. FCC, 
205 F.3d 82, 88-89 (2d Cir. 2000), cert. denied, 121 S. Ct. 758 
(2001). Respondents did not give the FCC a “fair opportu- 
nity” to address their “legal or factual argument.” Accord- 
ingly, respondents’ argument is not properly before this 
Court. 

Requiring respondents to make their argument to the 
FCC in the first instance is particularly important in this 
case. Respondents’ argument depends on a number of issues 
of statutory construction, such as the meaning of the proviso 
in Subsection 522(7) that a cable company remains such “to 
the extent [it] is used in the transmission of video program- 
ming directly to subscribers.” Moreover, it is inconsistent on 
its face with the provision of the Pole Attachments Act that 

4 

protects “any” attachment not only “by a cable television 
system,” but also “by a * * * provider of telecommuni- 
cations service”—which presumably describes a cable com- 
pany when it acts as a common carrier. 47 U.S.C. 224(a)(4). 
The FCC should have the opportunity to address those 
issues in the first instance. 

Furthermore, respondents’ argument rests on the factual 
premise that “most”—but apparently not all—“major cable 
companies are now common carriers subject, in part, to the 
provisions of Title II [of the Communications Act].” The sole 
support advanced for that proposition (Amer. Elec. Power 
Br. 20) is a publication of petitioner National Cable and 
Telecommunications Association stating that “[a]t least nine 
of the nation’s largest multiple system operators (MSOs) 
now offer residential and/or commercial phone service in 
more than 45 markets overall.” See ibid. By its terms, that 
untested statement does not purport to specify the number 
or percentage of individual “cable television systems” oper- 
ated by those or other firms that act as telecommunications 
carriers.2 In short, the untested factual premise of respon- 
dents’ argument could not possibly support the court of 
appeals’ conclusion that all attachments used to provide 
commingled cable television and Internet access are outside 
the protections of the Pole Attachments Act. 

2 On page 1-C-1, the same document states that “the cable industry 
now comprises 10,466 separate systems.” NCTA, Cable Television Hand- 
book (2001), <available at: http://www.ncta.com/pdf_files/Handbook- 
Total.pdf>. 

5 

B. Subsections (d) And (e), Which Provide Parameters 

For Certain Pole Attachment Rates, Do Not Purport 

To—And Have Been Reasonably Construed By The 

FCC Not To—Limit The Types Of Attachments 

Protected By The Act 

1. As we explain in our opening brief (at 22-25), Sub- 
sections (d) and (e) do not limit the types of attachments 
protected by the Act, but instead specify limits on rates 
applicable to certain classes of attachments: Subsection (d) 
addresses rates “for any pole attachment used by a cable 
television system solely to provide cable service,” 47 U.S.C. 
224(d)(3), and Subsection (e) addresses rates “for pole 
attachments used by telecommunications carriers to provide 
telecommunications services,” 47 U.S.C. 224(e)(1). Re- 
spondents argue that those provisions impliedly limit the 
general authority to ensure just and reasonable rates for 
“any” pole attachment granted in Subsections (a) and (b) to 
the particular attachments specified in Subsections (d) and 
(e). 

Respondents’ reading gives no effect to the general rate- 
making authority granted in Subsections (a) and (b). Indeed, 
the coverage of the Act would remain unchanged under 
respondents’ theory if Congress had simply eliminated the 
general terms of Subsections (a) and (b) granting that 
authority. But Congress wrote the Act to give the FCC a 
broader authority, and respondents’ attempt to read Subsec- 
tions (a) and (b) out of the Act should be rejected. “[T]he 
more natural reading of the statute’s text, which would give 
effect to all of its provisions, always prevails over a mere 
suggestion to disregard or ignore duly enacted law as legisla- 
tive oversight.” United Food & Commercial Workers Union 
Local 751 v. Brown Group, Inc., 517 U.S. 544, 550 (1996). 

2. Respondents argue that the “more specific language in 
Sections 224(d)(3) and (e)(1) * * * expressly limits the 
FCC’s ratemaking powers to attachments used solely to pro- 

6 

vide cable and telecommunications services.” Atlantic City 
Elec. Br. 15-16. Nothing in those subsections, however, 
“expressly” or even impliedly limits Subsections (a) and (b) 
to any specific types of attachments. As our opening brief 
points out (at 17-18), Congress knew how to withdraw parts 
of the FCC’s general ratemaking authority when it wanted 
to do so, as it did in Subsection (c), which governs cases in 
which a State has regulated pole attachments, and Sub- 
section (a)(5), which governs attachments by incumbent local 
exchange carriers (ILECs).3 Nothing in Subsections (d) and 
(e), however, can reasonably be read to withdraw the 
authority over “any” pole attachment granted in Subsections 
(a) and (b). 

3. Respondents argue that “Congress cannot reasonably 
be assumed to have provided * * * highly detailed stan- 
dards for * * * rates for cable and telecommunications 
attachments [in Section 224(d) and (e)], yet to have provided 
an entirely unbounded power to the Commission to set just 
and reasonable rates for other services (including Internet 
services).” Amer. Elec. Power Br. 14. There are two errors 
in respondent’s argument. First, the FCC’s power to set 
“just and reasonable” rates for “other services” is not at all 
“unbounded”; an important factor in determining whether a 
rate is “just and reasonable” under the Act (as the FCC 
clearly recognized in this case by adopting the Subsection (d) 
rate for commingled cable and Internet services) is the 

3 We explain in our opening brief (at 18) that Congress excluded 
attachments by ILECs from the Act’s protections in part because it found 
that ILECs frequently owned or controlled poles themselves. Re- 
spondents state (Amer. Elec. Power Br. 4 n.3) without citation that “[t]he 
implication that [ILECs] own or control all of the poles they use to string 
their wires is untrue.” What is significant, however, is that Congress 
itself, as shown by the committee report cited in our opening brief (at 18), 
has long shaped the Pole Attachments Act on the premise that ILECs 
frequently (not always) own or control the poles they use, and Congress 
had no reason to disrupt the longstanding arrangements by which electric 
utilities and ILECs each shared access to poles owned by the other. 

7 

relationship between it and the specific rates in Subsections 
(d) and (e). Second, what is at issue here is not pole 
attachments used exclusively for “other services,” but pole 
attachments that are indisputably used at least in part “by a 
cable television system,” 47 U.S.C. 224(a)(4), to provide cable 
television services. The FCC has not broadened the Act to 
include attachments for Internet access; it has reasonably 
construed the Act in accordance with its terms so as not to 
exclude the intended rate protection for attachments by 
cable television systems simply because they additionally 
provide commingled Internet access. 

4. Respondents argue extensively that Internet access is 
neither a “cable service” nor a “telecommunications service” 
under the Communications Act and that the FCC erred in 
failing to rule on that question. See, e.g., Amer. Elec. Power 
Br. 16-18, 22-28; Atlantic City Elec. Br. 24-30; TXU Elec. Br. 
15-18. The question on which this Court granted certiorari, 
however, is whether the provisions of the Pole Attachments 
Act “apply to attachments by cable television systems that 
[are] simultaneously used to provide high-speed Internet ac- 
cess and conventional cable television programming.” 121 S. 
Ct. 879. Because that question turns on the general terms of 
Subsections (a) and (b), it does not turn on the characteriza- 
tion of Internet access as “cable” or “telecommunications” 
service. If Internet access is either cable television service 
or telecommunications service, all parties apparently agree 
that it comes within the protection of the Act. If Internet 
access is neither cable television service nor telecommunica- 
tions service, it still comes within the Act if it is provided 
over “any attachment by a cable television system or pro- 
vider of telecommunications service.” 47 U.S.C. 224(a)(4). 
Accordingly, for the reasons given in our opening brief (at 
29-30), the characterization issue need not—and should not 
—be resolved to answer the question presented here. See 
also Amer. Elec. Power Br. 12 (characterization issue has 
“ramifications far beyond the world of pole attachments”). 

8 

The FCC should be left to resolve that issue in the first 
instance as and when such resolution becomes necessary. 

C. Respondents’ Policy Arguments Are Contrary To The 

Policies Of The Act 

1. Respondents argue that the FCC’s decision to apply 
the Subsection (d)(3) rate to wires used to provide commin- 
gled cable television programming and Internet access has 
untoward policy implications. Even if that were true, it is 
for Congress—not the courts—to make any corrections it 
deems desirable in the Pole Attachments Act. In any event, 
respondents’ policy arguments are not sound. 

a. Respondents argue that the FCC’s construction of the 
Act is wrong because “it is not reasonable to assume that 
Congress intended sub silentio to ‘subsidize’ the cable 
industry’s provision of high-speed Internet service, while 
simultaneously excluding this ‘subsidy’ for their principal 
competitors,” which are said to consist of telecommuni- 
cations firms that provide high-speed Internet access by 
means of digital subscriber lines. Amer. Elec. Power. Br. 29- 

30. 
Insofar as respondents’ complaint arises from the FCC’s 
choice of the Subsection (d) rate—rather than the Subsection 
(e) rate or some other rate—it is not properly before this 
Court. The court of appeals did not address the question 
whether the FCC’s choice of a rate was valid; it held that the 
FCC had no jurisdiction over attachments used to provide 
commingled service at all. If this Court reverses the court of 
appeals, that court on remand could address any issues that 
respondents have preserved about the FCC’s choice of rate. 
In any event, respondents’ argument is not well-taken. It 
is undisputed that the Act provides a potentially lower rate 
for attachments by cable television systems used to provide 
cable television service. It provides a potentially somewhat 
higher rate based on the number of attachers for attach- 
ments by competitive local exchange carriers (CLECs), 

9 

which are essentially new entrants into the local telephone 
market. See 47 U.S.C. 224(e). And it does not provide rate 
protection at all for incumbent local exchange carriers 
(ILECs). See 47 U.S.C. 224(a)(5). As written and as con- 
strued by the FCC, the Act provides that all three catego- 
ries of providers—cable television systems, CLECs, and 
ILECs—continue to pay the same rates as before for pole 
attachments if and when they provide commingled Internet 
access. Thus, all three groups are on an equal competitive 
footing in providing Internet access. Under respondents’ 
theory, however, cable systems—but not CLECs or 
ILECs—would face a potentially large increase in their pole 
attachment rates if they initiate Internet access. Accord- 
ingly, while the Act as written and construed by the FCC 
preserves competitive equality, respondents’ argument 
would result in imposing a substantial competitive dis- 
advantage on cable systems in comparison to other com- 
petitors in the market for Internet access. Or, to put the 
matter another way, respondents’ theory would destroy 
competitive equality by increasing—perhaps forbiddingly— 
cable systems’ marginal costs of providing commingled 
Internet access. 

b. On a related point, we explain in our opening brief (at 
20-21) that Congress’s express statutory declarations of a 
federal policy to “encourage the deployment” of broadband 
capability “that remove barriers to infrastructure invest- 
ment,” 47 U.S.C. 157 note, and “to promote the continued 
development of the Internet,” 47 U.S.C. 230(b)(1), support 
the FCC’s construction of the Pole Attachments Act not to 
impose a penalty on cable television systems that provide 
commingled Internet access. Respondents argue (e.g., Amer. 
Elec. Power. Br. 29) that another federal policy—“to 
preserve the vibrant and competitive free market that 
presently exists for the Internet and other interactive 
computer services, unfettered by Federal or State 

10 

regulation,” 47 U.S.C. 230(b)(2)—is also implicated in this 
case. 

The provision cited by respondents addresses the market 
“for the Internet,” and it therefore is most naturally read to 
address the market for provision of Internet services to 
consumers, not the market for products (such as pole attach- 
ments or, for that matter, telephone switching equipment or 
rights-of-way used by ILECs and CLECs) used by pro- 
viders of Internet services to make their businesses viable.4 
Furthermore, the Act as written and construed by the FCC 
does preserve a “vibrant and competitive free market” for 
Internet services by protecting cable television systems that 
provide such services from the monopoly power that utilities 
would otherwise exercise over pole attachments. Finally, 
Section 230(b)(2) is a statement of policy that could not in 
any event override the unambiguous terms of specific laws, 
such as those of the Pole Attachments Act at issue here. 

2. Respondents argue (e.g., Atlantic City Elec. Br. 20) 
that there is a “requirement that the Act be construed nar- 
rowly” because it “effects a taking.” In FCC v. Florida 
Power Corp., 480 U.S. 245 (1987), this Court held that the 

4 Respondents cite (see, e.g., Atlantic City Elec. Br. 32-33) three 
provisions of the Communications Act that impose restrictions on com- 
munication over the Internet in an effort to protect children—Sections 
230, 231, and 271 of Title 47—and then claim that “Congress did not * * * 
subtly hide regulation of the Internet in historical definitions of other 
services.” Congress of course directly addressed the Internet in those 
provisions because, unlike the Pole Attachments Act, they regulate com- 
munication over the Internet, regardless of how the Internet is accessed. 
Moreover, there is nothing “subtle” or “hid[den]” in the Pole Attachments 
Act’s provisions protecting rates for “any” pole attachment “by a cable 
television system or provider of telecommunications service.” 47 U.S.C. 
224(a)(4). Indeed, it is respondents whose position presumes that Con- 
gress “subtly hid[]” partial deregulation (i.e., deregulation as soon as the 
provider adds commingled Internet access) of rates for attachments by 
cable television systems in provisions of the Pole Attachments Act 
(Subsections (d) and (e)) that on their face do not withdraw any of the 
Act’s protections. 

11 

pre-1996 Act did not effect a taking. The Eleventh Circuit 
has held that the Act now does effect a taking, see Pet. App. 
17a-18a, but that court has not yet addressed the question 
whether its rate formulas provide for just compensation, id. 
at 19a. So long as just compensation is provided, the Act is 
not subject to constitutional objection. And if it ultimately 
were to turn out that just compensation is not provided, 
constitutional questions would arise about the validity of the 
Act’s rate protections for all attachments by cable television 
systems and telecommunications providers—not just the 
subset of attachments at issue here that are used to provide 
commingled cable television programming and Internet 
access. In short, the Act in our view is not unconstitutional, 
no court has held it to be unconstitutional, and, in any event, 
the doctrine of constitutional doubt could not suffice to re- 
quire interpreting it in contradiction to its plain language 
and the views of the agency entrusted with its implementa- 
tion. See National R.R. Passenger Corp. v. Boston & Me. 
Corp., 503 U.S. 407, 421-422 (1992) (following “the rule of 
judicial deference to an agency’s statutory interpretation, 
even when the statute is one authorizing condemnation of 
private property”). 

II. SECTION 224 APPLIES TO ATTACHMENTS USED 
TO PROVIDE WIRELESS COMMUNICATIONS 

A. All Parties Agree That The Act Protects At Least 

Some Attachments By Wireless Providers 

We explain in our opening brief (at 34-35 & n.12) that 
wireless carriers frequently use wires to attach and connect 
their wireless facilities. Respondents now repudiate 
(American Elec. Power Br. 31) as “imprecise language” the 
court of appeals’ statement that the Pole Attachments Act 
does not protect any attachments by wireless telecommuni- 
cations providers—even wireline attachments used to 
connect to wireless facilities. See, e.g., Pet. App. 25a (“[T]he 
act does not provide the FCC with authority to regulate 

12 

wireless carriers.”). Respondents now uniformly agree that 
the court of appeals’ statements cannot be taken at face 
value, and that “to the extent a wireless carrier seeks to 
attach a wireline facility to a utility pole, * * * the wireline 
attachment is subject to Section 224.” Amer. Elec. Power 
Br. 31; Atlantic City Elec. Br. 40; TXU Elec. Br. 18; Florida 
Power & Light Br. 10-11. All parties therefore now agree 
that, insofar as the court of appeals excluded wireline 
facilities used by wireless telecommunications providers 
from the Act’s protections, it erred. 

B. The Act’s Definition Of “Usable Space” Does Not 

Limit Its Protection For Attachments By Providers 

Of Wireless Telecommunications Services 

Respondents argue that the rate formula in Subsection (e) 
for attachments by telecommunications providers requires 
the conclusion that “wireless equipment is not covered.” 
Amer. Elec. Power Br. 31; see id. at 35. The Subsection (e) 
rate formula defines the rate for attachments by telecom- 
munications providers partly in terms of the “usable space” 
on a pole. 47 U.S.C. 224(e)(2) and (3). The term “usable 
space” is not defined for purposes of Subsection (e). But the 
prior subsection—Subsection (d), which governs the rates 
for attachments by cable television systems and telecom- 
munications providers until the FCC has promulgated new 
regulations (as it now has done)—provides that “[a]s used in 
this subsection, the term ‘usable space’ means the space 
above the minimum grade level which can be used for the 
attachment of wires, cables, and associated equipment.” 47 
U.S.C. 224(d)(2) (1994). Respondents argue that, at least 
under the Section 224(d) definition of usable space, telecom- 
munications providers “are entitled to a regulated rate for 
attachments of wires, cables and associated equipment,” and 
they assert that it follows that “[w]ireless facilities are not 
covered.” Amer. Elec. Power. Br. 35. 

13 

1. Section 224(d)(2) does not purport to limit the terms of 
Subsections (a) and (b) that unambiguously provide that 
wireless attachments are covered. Moreover, respondents’ 
argument fails on its own terms, because the “usable space” 
definition on which respondents rely refers not merely to 
“wires,” but also to “associated equipment.” As the FCC 
explained, “associated equipment,” even in the case of 
traditional wireline telecommunications providers, often 
includes “a traditional box-like device and cable wires 
strung between poles.” Pet. App. 96a (emphasis added).5 
Thus, even under respondent’s view, attachments of both 
“wires” and “associated equipment” consisting of “box-like 
device[s]” are protected by the Act—regardless of whether 
the purpose of the attachment is ultimately to provide wire- 
line or wireless telecommunications. 

2. If the Act protects wires and associated “box-like 
device[s]” of all telecommunications providers, then its pro- 
tections extend well into the full range of attachments by 
wireless telecommunications providers. But respondents 
would require courts to distinguish other kinds of wireless 
equipment—presumably those that are not “box-like de- 
vice[s]” or otherwise sufficiently similar to the attachments 
made by wireless telecommunications providers—whose at- 
tachment to poles would not be protected by the Act. Re- 
spondents nowhere offer any principled way to distinguish 
between wires and “box-like device[s]” that are protected by 
the Act and what they term “wireless equipment” that 

5 The record before the FCC includes pictures and descriptions of 
various box-like devices typically attached to utility poles by cable and 
wireline telecommunications providers. See, e.g., Exhibits to Joint Com- 
ments of the Electric Utilities Coalition, CS Dkt. No. 97-98 (filed June 27, 
1997); Exhibits to Reply Comments of the Electric Utilities Coalition, CS 
Dkt. No. 97-98 (filed Aug. 11, 1997). See also Pet. App. 59a n. 5 (noting 
that FCC “considered the comments and reply comments filed in * * * 
CS Docket No. 97-98” in this proceeding). We have lodged copies of the 
cited comments and exhibits with the Court. 

14 

respondents claim to be unprotected. See, e.g., American 
Elec. Power Br. 31. Indeed, while some wireless equipment 
of some providers may require “the Commission [to] 
examine the issues on a case-by-case basis,” Pet. App. 96a, 
other modern wireless equipment may be very similar in size 
and shape to the equipment used to provide purely wireline 
cable and telecommunications service. The fact that 
attachment of some wireless equipment could present novel 
issues that the Commission will have to address is an 
insufficient basis for concluding that the Act excludes 
attachments for “wireless equipment.”6 

3. The Commission’s straightforward interpretation of 
the Act avoids the fruitless task of attempting categorically 
to distinguish wires and “box-like device[s]” that are pro- 
tected by the Act from those that are not. The general 
jurisdiction-granting provisions of the Act do not make any 
distinction between wireline and wireless equipment. See 
U.S. Br. 31. To be sure, difficulties may arise in applying the 
FCC’s rules to some wireless pole attachments, just as they 
may arise in applying the rules to some wireline pole attach- 
ments. See Pet. App. 95a. Such difficulties, however, can be 
resolved in an orderly way under the Act. As the FCC 
explained, “[t]he statute, legislative policy, administrative 
authority, and current industry practices all make private 
negotiation the preferred means by which pole attachment 
arrangements are agreed upon between a utility pole owner 
and an attaching entity.” Id. at 67a-68a (footnotes omitted). 
Although respondents contend that the FCC’s rules are 
inadequate to deal with the regulation of wireless attach- 
ments, the Commission has stated that “[t]here is no clear 
indication that [the Commission’s] rules cannot accommodate 

6 The Act does expressly permit pole owners to deny attachment 
rights “where there is insufficient capacity and for reasons of safety, 
reliability and generally applicable engineering purposes.” 47 U.S.C. 
224(f )(2). 

15 

wireless attachers’ use of poles when negotiations fail.” Id. 
at 96a. The Commission’s determination that its rules and 
presumptions are sufficient to accommodate most attach- 
ments to provide wireless service is entitled to respect. As 
the FCC has stated in a recent order reconsidering the rate 
formula for wireless and other attachments, “[w]e continue 
to believe it prudent to gain experience through case by case 
adjudication to determine whether additional guiding princi- 
ples or presumptions are necessary or appropriate.” Con- 
solidated Partial Order on Reconsideration, FCC 01-170, 
para. 45 (May 25, 2001); see also Pet. App. 96a. 

4. On a related point, respondents argue that “[t]he 
FCC’s own interpretations of the Act focus exclusively on 
wire attachments.” Atlantic City Elec. Br. 44 (capitalization 
altered). To facilitate private negotiations, the FCC has 
indeed adopted a series of presumptions that govern pole 
attachment rates, and those presumptions include “a rebut- 
table presumption of one foot as the amount of space a cable 
television attachment occupies.” Pet. App. 80a (emphasis 
added).7 Utilities certainly may challenge that presumption 
in cases where they can show that an attachment takes up 
more than one foot of usable space. The FCC’s adoption of a 
one-foot presumption, especially in the face of the fact that a 
cable wire typically occupies less than an inch of space, see 
note 7, supra, suggests that the FCC was allowing for the 
attachment not only of a cable wire, but also for clearance 

7 Respondents incorrectly state that the FCC’s rules “presume that a 
wire attachment will be made in about one inch of the pole’s com- 
munications space.” Atlantic City Elec. Br. 45 (emphasis added). While 
the FCC initially recognized that cable wires may have a diameter of less 
than one inch, it nonetheless presumptively assigned them a space of one 
foot. See In re Adoption of Rules for the Regulation of Cable Television 
Pole Attachments, 72 F.C.C.2d 59, 69-70 & n.26 (1979); see also 47 C.F.R. 

1.1418(b) (“The presumptive one foot of space occupied by attachment is 
applicable to both cable operators and telecommunications carriers.”) 
(emphasis added). 

16 

around that wire and some “associated equipment.”8 In any 
event, the FCC’s adoption of only a rebuttable—rather than 
conclusive—presumption that attachments take up one foot 
of usable space suggests that the FCC took account of the 
fact that some attachments protected by the Act may take 
up more space. 

C. Respondents’ Other Arguments Should Be Rejected 

1. Respondents argue (e.g., Amer. Elec. Power Br. 30 

n.21) that Section 224 does not “mandate access for cable or 
telecommunications companies to hang anything at all, from 
advertising banners to clothes lines, on utility poles.” See 
also Atlantic City Elec. Br. 41 (“a cable video monitor, 
advertising signage or lighting”). The FCC has not been 
asked to consider whether the Act protects attachments that 
are not directly used to provide cable television or tele- 
communications services. If that issue were to arise, how- 
ever, the FCC surely could find that the Act does not apply 
to attachments that are not used directly to provide cable 
television or telecommunications service. Alternatively, the 
FCC could conclude that the “just and reasonable” rate for a 
clothesline or advertising banner, in light of the Act’s pur- 
poses and structure, is the market rate for that item. The 
plain terms of the Act protecting attachments used to 
provide wireless and wireline telecommunications services 

8 Respondents argue that prior to 1996, “equipment ‘associated’ with 
cable wires, such as the power boosters or amplifiers that cable operators 
routinely use to maintain cable signals over longer distances, was 
routinely attached to poles but was never the subject of regulated rates.” 
Atlantic City Elec. Br. 44 (footnote omitted). That is mistaken, as the case 
they cite for that proposition demonstrates. See Capital Cities Cable, Inc. 

v. Mountain States Tel. & Tel. Co., 56 Rad. Reg. 2d (P&F) 393, at 403 
para. 23 (1984) (“[T]he space deemed occupied by [a cable television 
system] includes not only the cable itself, but also any other equipment 
normally required by the presence of [the cable television system].”) 
(emphasis added). 

17 

should not artificially be limited to address respondents’ far- 
fetched examples. 

2. Respondents argue (e.g., Atlantic City Elec. Br. 46) 
that permitting pole attachment rights for facilities used for 
wireless telecommunications services could make utility 
poles subject to “regulation as antenna structures” and could 
subject their owners to certain registration requirements. 
Registration is required, however, only for antennas that are 
more than 200 feet high, 47 C.F.R. 17.7(a), or would intrude 
into the airspace in or near an airport in accordance with 
certain formulas, 47 C.F.R. 17.7(b), (c) and (d). Typical 
utility poles subject to the Pole Attachments Act are 37.5 
feet high, see note 9, infra, and are unlikely to intrude into 
the airspace of an airport, regardless of whether they have 
wireless attachments. Accordingly, respondents’ concerns 
are misplaced. In any event the Commission can certainly 
address any problems that arise from particular attachments 
if and when such problems develop. 

3. Respondents make much of an asserted congressional 
desire to limit the FCC’s jurisdiction when the Pole Attach- 
ments Act was first enacted in 1977. See, e.g., Amer. Elec. 
Power Br. 32, 34-35. To a great extent, the cited statements 
of concern had to do with whether the FCC or state regu- 
latory bodies should be regulating pole attachments. For 
example, although respondents (see id. at 32) rely on con- 
cerns expressed by the White House Office of Telecommuni- 
cations Policy, that office ultimately concluded that the Act’s 
provision that “FCC jurisdiction would not exist if the state 
regulatory authorities adopt any plan to regulate pole and 
conduit space * * * accommodates our concerns.” H.R. 
Rep. No. 721, 95th Cong., 1st Sess. Pt. 2, at 12 (1977), 
reprinted in Amer. Elec. Power Br. App. 85a-86a. 

In any event, it is certainly true that Congress originally 
limited the Act’s protection to pole attachments by cable 
television systems, excluding all other attachments (in- 
cluding those by all telecommunications providers). See, e.g., 

18 

Atlantic City Elec. Br. 40. It is equally true, however, that 
Congress extended the Act’s protection in 1996 to “any 
attachment by a * * * provider of telecommunications 
service,” 47 U.S.C. 224(a)(4), and at the same time added a 
definition of “telecommunications service” that—by using 
the phrase “regardless of the facilities used,” 47 U.S.C. 
153(46)—precluded any distinction between wireline and 
wireless services. In 1996, Congress was therefore clearly 
aware that it was protecting attachments used to provide 
wireless, as well as wireline, telecommunications services. 
Respondents do not adduce a scrap of legislative history to 
suggest that Congress at that time was concerned with 
“strictly circumscrib[ing],” Amer. Elec. Power Br. 1, the 
FCC’s jurisdiction or otherwise limiting the Act’s protection 
for “any” pole attachment, 47 U.S.C. 224(a)(4). 

4. Respondents argue that Congress “deal[t] extensively 
with the siting of wireless equipment in [47 U.S.C. 
332(c)(7)],” which was also part of the 1996 Telecom- 
munications Act, and that the specificity of that provision 
indicates that Congress “did not intend that Section 224 
provide the FCC authority to regulate the siting of wireless 
equipment.” Amer. Elec. Power Br. 36, 38; see also Florida 
Power & Light Br. 22-24; Pet. App. 26a. Section 332 
addresses “the authority of a State or local government 

* * * over decisions regarding the placement, construction, 
and modification of ” wireless telephone facilities. 47 U.S.C. 
332(c)(7)(A). It requires zoning boards and other 
instrumentalities of state and local government, inter alia, to 
act within a reasonable time on siting requests, to support 
any denial of a request with substantial evidence, and not to 
base siting decisions on environmental effects of radio 
frequency emissions. 

Contrary to the inference that respondents seek to draw, 
Section 332(c)(7)(A) demonstrates that Congress knew how 
to distinguish between wireless and wireline facilities when 
it wanted to do so. In that provision, Congress addressed 

19 

local zoning problems that affected wireless (not wireline) 
service, and it accordingly limited the provision solely to 
wireless services. The terms of the Pole Attachments Act, 
however, have nothing to do with zoning problems and 
preclude any such distinction. To the contrary, they apply to 
“any” attachment by a telecommunications service provider, 
“regardless of the facilities used.” 47 U.S.C. 153(46). 

5. Finally, respondents state, without citation, that “[a] 
vibrant free market exists for wireless sites” and that the 
“market rate * * * varies widely, but typically is $1,500 to 
$2,000 per month.” Amer. Elec. Power. Br. 41. Regardless 
of whether respondents’ figures are accurate, they appear to 
apply at most to the market for that part of the wireless ar- 
chitecture that requires line-of-sight capability, substantial 
height, and precise geographical location. It is unclear 
whether or to what extent any substantial part of that mar- 
ket would be affected by the Pole Attachments Act, since 
utility poles may not be high enough or located appropriately 
for telecommunications providers’ antennas.9 What is clear 
is that much of the wireless architecture may well be 
dependent on pole attachments, and Congress intended to 
cover such attachments when it amended the Act in 1996. 

In any event, Congress has determined in the Pole 
Attachments Act that telecommunications providers— 
whether wireless or wireline—are entitled to rate protection 
for pole attachments. Whether Congress’s determination 
does or does not affect what respondents call a “vibrant” free 
market is beside the point. If respondents are dissatisfied 
with Congress’s determinations, their remedy is not to seek 
a judicial revision of the plain terms of the Act but to return 

9 Amici Site Owners and Managers Alliance state (at 22 n.13) that 
“[t]owers used for wireless attachments vary considerably in height, with 
the tallest exceeding 2000 feet above ground and the average tower 
reaching 200-250 feet above ground.” By contrast, the FCC has deter- 
mined that typical utility poles are 37.5 feet high. Pet. App. 80a; 47 C.F.R. 

1.1418(b). 

20 

to Congress to seek new legislation. Moreover, respondents 
have not disputed the proposition (see U.S. Br. 27-31, 36) 
that this case should be resolved under Chevron standards. 
See, e.g., Atlantic City Elec. Br. 38-39. The FCC has 
construed the Act in accordance with its terms to apply to 
“any” attachment—whether used to provide wireless or 
wireline services. In order to prevail, respondents must 
show that the FCC’s interpretation is either “arbitrary or 
capricious in substance” or “manifestly contrary to the 
statute.” United States v. Mead Corp., 121 S. Ct. 2164, 2171 
(2001). Their policy arguments that regulation may be un- 
necessary for some class of wireless attachments cannot 
satisfy that burden. 

For the reasons given above and those in our opening 
brief, the judgment of the court of appeals should be re- 
versed. 

Respectfully submitted. 

JANE E. MAGO 

General Counsel 
Federal Communications 

Commission 
THEODORE B. OLSON 
Solicitor General 

JULY 2001