No. 00-843 

In the Supreme Court of the United States 

FEDERAL COMMUNICATIONS COMMISSION AND 

THE UNITED STATES OF AMERICA, PETITIONERS 

v. 

GULF POWER COMPANY, ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

CHRISTOPHER J. WRIGHT 

General Counsel 

JONATHAN E. NUECHTERLEIN 

Deputy General Counsel 

JOHN E. INGLE 

Deputy Associate General 

Counsel 

GREGORY M. CHRISTOPHER 

Counsel 
Federal Communications 

Commission 
Washington, D.C. 20554 
SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

A. DOUGLAS MELAMED 

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, direct the Federal Communications Com- 
mission to set “just and reasonable” rates, 47 U.S.C. 
224(b)(1), that a utility may charge for “any attachment 
by a cable television system or provider of telecom- 
munications 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 pre- 
sented 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 wire- 
less telecommunications services no less than to attach- 
ments by providers of wireline telecommunications 
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 & 
Telecommunications Association, Arizona Cable Tele- 
communications Association, and Ameritech Corpora- 
tion. 

TABLE OF CONTENTS 

Page 

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

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

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

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

Reasons for granting the petition ............................................... 
11 

Conclusion ....................................................................................... 22 

TABLE OF AUTHORITIES 

Cases: 

Alabama Cable Telecomm. Ass’n v. Alabama Power 

Co., DA 00-2078 (FCC Cable Servs. Bur. Sept. 8, 

2000) ......................................................................................... 19 

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

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

5, 15 

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

(1999) ........................................................................................ 17 

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

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

13 

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

20 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 

(1984) ........................................................................................ 17 

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

2 

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

Cir. 1993) ............................................................................... 

3, 13 

Constitution and statutes: 

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

5-6, 18 

Hobbs Act, 28 U.S.C. 2341 et seq.: 

28 U.S.C. 2342(1) .................................................................... 

18 

28 U.S.C. 2349(a) .................................................................... 

18 

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

92 Stat. 35 (47 U.S.C. 224) ......... 

2, 4, 5, 13, 15, 17, 19, 20, 21 

47 U.S.C. 224(a)(1) (1994 & Supp. IV 1998) .................. 20 

(III) 

IV 

Statutes—Continued: Page 

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

2, 3, 

6, 7, 12, 13, 19, 20, 21 
47 U.S.C. 224(b) ............................................................. 

13, 16 

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

2, 7, 12, 14, 16 

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

3-4, 15, 16 

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

4, 6, 14, 15 

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

14, 15, 16 

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

4, 6, 14, 15 

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

3, 4 

47 U.S.C. 224(f )(1) (Supp. III 1997) ............................... 

8 

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

104, Tit. VII, 110 Stat. 56 ..................................................... 

3 

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

16-17 

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

16-17 

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

16-17 

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

Tit. I: 

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

8, 19 

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

8 

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

3, 8, 19 

Tit. II: 

47 U.S.C. 230(b)(1) (Supp. IV 1998) ............................... 

17 

Miscellaneous: 

H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. 
(1996) ........................................................................................ 14 

Implementation of Section 703(e) of the Telecom- 
munications Act of 1996: Amendment of the Com- 
mission’s Rules and Policies Governing Pole 
Attachments, 13 F.C.C.R. 6777 (1998) ............................... 

4 

Inquiry Concerning High-Speed Access to the Inter- 
net Over Cable and Other Facilities, FCC No. 00- 
355 (Sept. 28, 2000) ................................................................ 
15 

Promotion of Competitive Networks in Local Tele- 
communications Markets, 14 F.C.C.R. 12673 
(1999) ........................................................................................ 21 

V 

Miscellaneous—Continued: Page 

S. Rep. No. 367, 103d Cong., 2d Sess. (1994) ........................ 
14 

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

In the Supreme Court of the United States 

No. 00-843 

FEDERAL COMMUNICATIONS COMMISSION AND 

THE UNITED STATES OF AMERICA, PETITIONERS 

v. 

GULF POWER COMPANY, ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States 
and the Federal Communications Commission, petitions 
for a writ of certiorari to review the judgment of the 
United States Court of Appeals for the Eleventh 
Circuit. 

OPINIONS BELOW 

The decision of the court of appeals (App. 1a-41a) is 
reported at 208 F.3d 1263, and the order denying 
rehearing en banc (App. 42a-55a) is reported at 226 
F.3d 1220. The principal order of the Federal Com- 
munications Commission (FCC), Implementation of 
Section 703(e) of the Telecommunications Act of 1996: 
Amendment of the Commission’s Rules and Policies 
Governing Pole Attachments, is reported at 13 
F.C.C.R. 6777 and is reprinted at App. 56a-204a. 

(1) 

2 

JURISDICTION 

The judgment of the court of appeals was entered on 
April 11, 2000. A petition for rehearing was denied on 
September 12, 2000 (App. 55a). 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 App. 205a-211a. 

STATEMENT 

1. Since the inception of cable television, cable op- 
erators have leased space on existing 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. 
App. 5a; S. Rep. No. 580, 95th Cong., 1st Sess. 15 (1977). 
Constraints imposed by “zoning restrictions, environ- 
mental regulations, and start-up costs have rendered 
other options infeasible.” App. 5a. The “monopoly” 
enjoyed by the power and telephone companies 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). 

To address that problem, Congress enacted the Pole 
Attachments Act, Pub. L. 95-234, § 6, 92 Stat. 35 (codi- 
fied at 47 U.S.C. 224). 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 attachment” 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. 

3 

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) (ap- 
proving 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); see also 47 U.S.C. 224(f ) (Supp. IV 
1998) (generally requiring utilities to provide cable 
operators and “any telecommunications carrier” with 
“nondiscriminatory access”). Such “telecommunications 
service” 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 di- 
rectly to the public, regardless of the facilities used.” 
47 U.S.C. 153(46) (Supp. IV 1998). 

Second, the 1996 amendments altered the specifica- 
tion of pole attachment rates that are applicable in 
particular contexts under the Act. Before 1996, Section 

4 

224(d) had set forth a particular formula for deter- 
mining “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).1 

3. The FCC implemented the amendments to the 
Pole Attachments Act in Implementation of Section 
703(e) of the Telecommunications Act of 1996: Amend- 
ment of the Commission’s Rules and Policies Govern- 
ing Pole Attachments, 13 F.C.C.R. 6777 (1998), see 
App. 56a-204a. As pertinent here, the Commission 
determined that the protections of Section 224 continue 
to cover attachments used simultaneously for providing 
data services and traditional cable television service. 
Id. at 85a-89a. Such data services increasingly include 
“cable modem” service: the use of cable facilities— 
including the same wires over which conventional cable 
television signals are transmitted—to provide “broad- 
band” (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 con- 

1 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 

nected to what is commonly referenced in the telecom- 
munications industry as ‘plain old telephone service.’ ” 
AT&T Corp. v. City of Portland, 216 F.3d 871, 873-874 
(9th Cir. 2000); see note 4, infra. 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.’ ” App. 90a. The Commission noted that that 
conclusion would remain valid regardless of whether a 
cable television system providing commingled Internet 
access is considered to be providing “cable service,” 
“telecommunications service,” or some other form of 
service. Id. at 89a-90a.2 Finally, the Commission 
determined that the 1996 amendments extend the pro- 
tections of Section 224 to wireless carriers no less than 
to other telecommunications carriers. Id. at 91a-96a. 

4. A number of electric utility companies filed peti- 
tions for review of the FCC’s order in the Third, 
Fourth, Sixth, Eighth, Eleventh, and D.C. Circuits. 
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 on this petition, a panel of the 
court of appeals unanimously held that challenges to 
various aspects of the FCC’s orders under the Takings 

2 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.” App. 89a; see note 4, infra. 

6 

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 
petition, 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 telecommunications 
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 televi- 
sion 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.’ ” 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 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 provisions 
“applies to ‘any pole attachment used by a cable televi- 
sion 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 

7 

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 telecommuni- 
cations service.” Ibid. Notwithstanding that the FCC 
had expressly declined to rule on the correct categoriza- 
tion of Internet access provided through cable modems, 
see note 1, supra, the court concluded that such Inter- 
net access is neither cable service, id. at 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 
service, 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 
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) (emphasis added). Other subsections of 
the Act provide, inter alia, that the Commission “shall 

* * * 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 

8 

right-of-way owned or controlled by it,” 47 U.S.C. 
224(f)(1) (Supp. IV 1998).3 

The court of appeals rejected the FCC’s position, see 
App. 91a-96a, that an attachment by a wireless tele- 
communications provider, no less than an attachment 
by a wireline provider, is an “attachment by a * * * 
provider of telecommunications services” 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- 
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 

3 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 

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.” 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.” App. 41a. 

With respect to cable television operators that pro- 
vide 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 telecommunica- 
tions services * * * fails to address the section 
224(b)(1) mandate that the FCC ‘regulate the rates, 
terms, and conditions for pole attachments * * *.’ ” 
App. 39a. He explained that “[b]ecause pole attach- 
ment 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. 

10 

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.” App. 37a. In his view, “[a]pplying that defini- 
tion * * *, 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 communications, 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 attach- 
ments.” Id. at 38a-39a. 

5. The government and other parties sought rehear- 
ing en banc. The court of appeals denied that request in 
a short per curiam order. App. 44a. Judge Carnes filed 
a statement concerning the denial of rehearing en banc. 
He noted that his opinion dissenting in relevant part 
from the panel’s result “explains why I think the panel 
majority erred in holding the Pole Attachments Act’s 
regulated rate provisions do not extend to attachments 
used for wireless communications and Internet ser- 
vices.” Ibid. With respect to rehearing en banc, how- 
ever, he observed that “five of the twelve judges in 
active service on this Court are disqualified from par- 
ticipating 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 banc peti- 

11 

tion, because, under Eleventh Circuit precedent, 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.” 
Id. at 45a. As Judge Carnes explained, so long as the 
author of the panel majority opinion (the only other 
active Eleventh Circuit judge on the panel, since the 
third member of the panel was a Senior Circuit Judge 
from another court sitting by designation) stood by his 
original position, “this case could not be taken en banc 
no matter how strongly the remaining six non- 
disqualified judges thought it should be.” Id. at 47a. 

Judge Carnes noted that the inability to obtain en 
banc review in this case is “particularly unfortunate” 
“because this is an important case that may affect every 
person who uses wireless communication or Internet 
service in this country.” App. 53a-54a. He noted that, 
as a result of the fact that the Eleventh Circuit’s 
decision has binding nationwide significance, “the law 
on th[e]se industry-shaping issues of exceptional 
importance is decided not by a majority of the judges in 
active service on this Court but instead solely by one 
active judge of this Court joined by a senior judge from 
another court.” Id. at 54a 

REASONS FOR GRANTING THE PETITION 

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 possible interpretation, may not apply at all) to pro- 
viders of wireless telecommunications services. Those 
holdings are directly contrary to the terms of the Act, 

12 

which unambiguously provide that the FCC “shall 
regulate” the rates for “pole attachments,” 47 U.S.C. 
224(b)(1), and define “pole attachments” as “any attach- 
ment by a cable television system or provider of tele- 
communications service,” 47 U.S.C. 224(a)(4) (1994 & 
Supp. IV 1998) (emphasis added). With respect to cable 
Internet access, the court of appeals’ ruling—that cable 
television systems are excluded from the rate protec- 
tions of the Act, and therefore penalized, as soon as 
they provide Internet access in addition to cable 
television service over their wires—directly contradicts 
Congress’s intent to make affordable, state-of-the-art 
Internet access broadly available. With respect to 
providers of telecommunications services, the panel’s 
decision disregards the broad language of the Pole 
Attachments Act, which does not admit of a distinction 
between providers of wireless and wireline telecom- 
munications services in defining the class of protected 
entities. 

The issues decided by the court of appeals were thus 
squarely addressed by Congress and resolved in the 
plain terms of the amended Pole Attachments Act. The 
court of appeals’ substantial constriction of the Act, 
based on policy rationales that were rejected by Con- 
gress and that are inconsistent with Congress’s objec- 
tives, is unjustified. Moreover, the court of appeals’ 
decision will have nationwide significance, because that 
decision is binding on the Commission and there will 
likely be no further opportunity for any other court of 
appeals to consider the question. Further review is 
warranted to keep the Eleventh Circuit’s decision from 
impairing the deployment of broadband Internet access 
to all Americans, and from unduly constricting the 
statutory protections Congress enacted to foster the 
growth of all varieties of communications services. 

13 

1. a. As the Commission’s order under review 
explains, the Commission before 1996 had ruled “that 
the provision by a cable operator of both traditional 
cable services and nontraditional services on a commin- 
gled basis over a single network * * * justified only a 
single, regulated pole attachment charge by the utility 
pole owner.” App. 82a-83a. That rule was upheld by 
the D.C. Circuit in Texas Utilities Electric Co. v. FCC, 
997 F.2d 925 (1993). In the proceedings under review in 
this case, the Commission concluded that nothing in the 
1996 amendments altered the conclusion that it had 
reached under the original Pole Attachments Act and 
that had been affirmed in Texas Utilities. Cable televi- 
sion 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). A cable television system does not 
forfeit its statutory protection by adding Internet 
signals. 

That conclusion is compelled by the language of 
Section 224, whose relevant terms were not changed in 
1996. Section 224(b) requires the Commission to ensure 
reasonable rates, terms, and conditions for “pole attach- 
ments,” and Section 224(a)(4) in turn defines “pole 
attachment” to include “any attachment by a cable tele- 
vision system” (emphasis added). As the D.C. Circuit 
held in Texas Utilities, those provisions authorize the 
Commission to ensure reasonable rates for “any” 
attachment by a cable television system, “regardless of 
the type of service provided over the equipment 
attached to the poles.” Texas Utils., 997 F.2d at 927. 

The court of appeals purported not to reject the D.C. 
Circuit’s holding in Texas Utilities. See App. 30a n.32. 
Instead, the court attempted to distinguish the Texas 

14 

Utilities decision on the ground that Congress had 
intended to limit the Commission’s authority in the 
1996 legislation. Although Congress in 1996 had not 
amended the key language that unambiguously re- 
quires the Commission to regulate pole attachment 
rates for “any” cable system, the court sought to divine 
Congress’s intent from other language that Congress 
added to prescribe the content of the Commission’s 
pricing rules in two discrete situations: where attach- 
ments are used “by a cable television system solely to 
provide cable service,” 47 U.S.C. 224(d)(3) (Supp. IV 
1998), and where attachments are used “by telecommu- 
nications carriers to provide telecommunications 
services,” 47 U.S.C. 224(e)(1) (Supp. IV 1998). 

The former provision compels the Commission to 
grandfather cable systems used “solely to provide cable 
service” into the preexisting rate structure for attach- 
ments, and the two provisions together enable the 
Commission to level the competitive playing field by 
prescribing the somewhat higher attachment rates of 
Section 224(e) when cable operators provide conven- 
tional telecommunications services in competition with 
telecommunications carriers. See H.R. Conf. Rep. No. 
458, 104th Cong., 2d Sess. 206 (1996); S. Rep. No. 367, 
103d Cong., 2d Sess. 65 (1994). The court of appeals 
erroneously interpreted those provisions, however, not 
just to address the content of the regulated rate in 
particular circumstances, but also to define the limits of 
the Commission’s more general authority under Section 
224(b)(1) to ensure “just and reasonable” pole attach- 
ment rates; in the court’s view, if an attachment is used 
neither to provide “telecommunications service” nor 
“solely to provide cable service” for purposes of Sec- 

15 

tions 224(d) and 224(e), it falls entirely outside the scope 
of the Act’s rate protections.4 

That holding is incorrect. Even if (as the court of 
appeals believed) cable modem service should be 
characterized neither as a “cable service” nor as a 

4 Because the court of appeals erroneously believed that a cable 
attachment receives statutory protection only if it is used to 
provide services falling within one of the two rate categories 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 
“telecommunications service,” or an “information service.” See 
App. 27a-29a. To date, the FCC has taken no position on that 
issue, which is central to a separate debate concerning whether a 
cable operator can be compelled to provide unaffiliated Internet 
service providers with “open access” to its cable facilities. See id. 
at 87a-89a; see also Inquiry Concerning High-Speed Access to the 
Internet Over Cable and Other Facilities, FCC No. 00-355, ¶¶ 14- 
24 (Sept. 28, 2000) (High-Speed Access Inquiry) (seeking comment 
on proper statutory classification of high-speed Internet access 
using cable modem technology). Moreover, in its conclusion that 
Internet access provided through cable television wires “does not 
meet the definition of * * * a telecommunications service,” App. 
32a, the Eleventh Circuit’s decision conflicts with a subsequent 
decision of the Ninth Circuit, which held 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 Communications Act.” AT&T Corp. v. City of 
Portland, 216 F.3d 871, 878 (2000); see also ibid. (“The Communica- 
tions Act includes cable broadband transmission as one of the 
‘telecommunications services’ a cable operator may provide over 
its cable system.”); cf. High-Speed Access Inquiry, ¶¶ 13, 18-20 
(seeking comment on whether it is appropriate to characterize 
cable modem service as “telecommunications service”). Ninth 
Circuit precedent therefore would compel a contrary result on the 
first question presented here, because, unlike the Eleventh Cir- 
cuit, the Ninth Circuit would place cable Internet access within the 
scope of “telecommunications services” for purposes of Section 224. 

16 

“telecommunications service,” the logical consequence 
of that position would still be to preserve the 
Commission’s discretion to determine the content of its 
pricing regulation of the attachments used to provide 
that service. It would not be to eliminate all rate 
protection for attachments used simultaneously to 
provide both traditional video programming and cable 
modem service. Nothing in either Section 224(d) or 
Section 224(e) alters the straightforward language of 
Section 224(b)(1), which requires the FCC to ensure a 
“just and reasonable” rate for “any” attachment by “a 
cable television system.” 

That conclusion is not only required by the language 
of the Pole Attachments Act, but it is also the only 
conclusion that is consistent with Congress’s purpose. 
To run their cable wires into customers’ homes for any 
purpose, cable companies must have reasonable access 
to the utility poles, conduits, and other essential facili- 
ties at the center of this case. As even the majority on 
the court of appeals agreed, it was precisely to keep the 
costs of such access reasonable that Congress gave all 
“cable systems” the rate protections of Section 224(b). 
App. 5a-6a. The result of the panel’s decision, however, 
is to strip cable companies of those protections if they 
use their wires, even in part, to offer their customers 
high-speed Internet access in addition to ordinary video 
programming. Significantly, the same Congress that 
enacted the 1996 amendments to Section 224(b) 
simultaneously directed the Commission to “encourage 
the deployment” of broadband capability to all Ameri- 
cans 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 

17 

(47 U.S.C. 157 note).5 It is highly implausible to con- 
clude that, in the same legislation, Congress exposed 
cable operators—and, ultimately, consumers—to the 
full brunt of monopolistic rate practices once those 
operators try to recover the costs of the massive 
“infrastructure investments” needed to upgrade their 
cable facilities for the provision of broadband Internet 
access.6 Yet that is the reading that the court of 
appeals has here adopted for the nation. 

Finally, even if there were ambiguity in Section 224, 
“Congress is well aware that the ambiguities it chooses 
to produce in a statute will be resolved by the imple- 
menting agency.” AT&T Corp. v. Iowa Utils. Bd., 525 
U.S. 366, 397 (1999) (citing Chevron U.S.A. Inc. v. 
NRDC, 467 U.S. 837, 842-843 (1984)). Here, the Com- 
mission’s resolution of any ambiguity created by the 
various provisions of Section 224 was more than reason- 
able. It is entitled to judicial deference, particularly in 
light of the immense practical consequences at stake for 
the cable industry and for American consumers. 

b. The question whether cable providers that pro- 
vide commingled Internet access are entitled to the 
protection of the Pole Attachments Act is one of excep- 
tional national significance warranting this Court’s 
review. Because this case arose on direct Hobbs Act 

5 See also 47 U.S.C. 230(b)(1) (Supp. IV 1998) (“It is the policy 
of the United States * * * to promote the continued development 
of the Internet and other interactive computer services and other 
interactive media.”). 

6 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. 

18 

review of FCC rules, see 28 U.S.C. 2342(1), it may 
present the only opportunity for any court to address 
the issues presented here. As a general matter, when 
challenges to FCC rules are consolidated for review in a 
single court of appeals, that court’s affirmance or 
invalidation of those rules applies nationwide; once 
those rules are vacated, the FCC does not seek to 
enforce them in other circuits. See 28 U.S.C. 2349(a) 
(“The court of appeals in which the record on review is 
filed, on the filing, has * * * exclusive jurisdiction to 
make and enter * * * a judgment determining the 
validity of, and enjoining, setting aside, or suspending, 
in whole or in part, the order of the agency.”). 

Moreover, this case, which was decided by a split 
vote of a single three-judge panel and was also, for 
recusal reasons, effectively immune from any subse- 
quent en banc review, see App. 42a-55a, resulted from 
actions filed by large utilities from all around the 
country that were consolidated for review by the 
Eleventh Circuit. This is therefore not a case in which 
this Court could benefit from awaiting further develop- 
ments in the case law before granting certiorari. As 
Judge Carnes observed, “[a] more national case could 
hardly be imagined,” and the outcome of this case “may 
affect every person who uses wireless communication 
or Internet service in this country.” Id. at 54a.7 

7 In response to the court of appeals’ rejection of their Takings 
Clause challenge as unripe, see pp. 5-6, supra, some utilities have 
sharply raised their attachment rates in an effort to provide a 
concrete factual setting for disposition of that constitutional chal- 
lenge. The rate levels the utilities have chosen vividly illustrate 
the dramatic consequences of removing statutory rate protections 
in this context. For example, one of the principal utilities involved 
in this case (Gulf Power) has now sought to raise its attachment 
rates from $6.20 to $38.06 per pole, and another (Alabama Power) 

19 

2. This Court should also grant certiorari to review 
the Eleventh Circuit’s decision concerning the appli- 
cation of Section 224 to providers of wireless telecom- 
munications services. 

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 telecommuni- 
cations 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 ap- 
plied the protections of Section 224 to “any attachment” 
by carriers that provide “telecommunications for a fee 
directly to the public * * * regardless of the facilities 
used.” Congress 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 ser- 
vices. 

The court of appeals excluded providers of wireless 
services from the full protections of Section 224 on the 
ground that the Pole Attachments Act elsewhere 
defines the “utilities” whose poles are subject to the 
obligations of that provision as companies that own 

has similarly sought to raise its attachment rates from $7.47 to 
$38.81 per pole. See Florida Cable Telecomm. Ass’n v. Gulf Power 
Co., complaint pending, P.A. No. 00-004 (FCC Cable Servs. Bur. 
July 10, 2000); Alabama Cable Telecomm. Ass’n v. Alabama 
Power Co., DA 00-2078 (FCC Cable Servs. Bur. Sept. 8, 2000). 
Alabama Power has filed a petition for review of the order issued 
by the FCC’s Cable Services Bureau prohibiting its rate increase. 
See Alabama Power Co. v. FCC, No. 00-14763-I (11th Cir. filed 
Sept. 13, 2000). 

20 

certain facilities “used, in whole or in part, for any wire 
communications.” 47 U.S.C. 224(a)(1) (1994 & Supp. IV 
1998). As the dissent below observed, however, the 
statutory definition of who must provide pole attach- 
ments at regulated rates has no logical bearing on the 
separate question of who may receive pole attachments 
at regulated rates. See App. 38a-39a. And, even if the 
statute were ambiguous on this point, the FCC’s 
resolution of the ambiguity would be entitled to sub- 
stantial deference, which the court of appeals errone- 
ously withheld. 

The court of appeals separately reasoned that, as a 
policy matter, wireless carriers do not need the pro- 
tections of Section 224, because (the panel believed) a 
utility’s poles “are not bottleneck facilities for wireless 
systems.” App. 25a. That reasoning is both legally 
unsound and factually mistaken. 

As a legal matter, the plain language of Section 
224(a)(4) is dispositive, regardless of whether it extends 
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 Con- 
gress was trying to remedy.” Brogan v. United States, 
522 U.S. 398, 403 (1998). In any event, regardless of 
whether the poles in question are “essential facilities” 
for wireless carriers in an antitrust sense, Congress and 
the FCC reasonably guaranteed those carriers just and 
reasonable rates for their attachments to promote the 
development of the wireless industry. 

As a factual matter, the panel majority was wrong in 
suggesting that utility poles are not “bottleneck 
facilities for wireless systems.” Wireless systems are 
typically wireless only between the subscriber’s wire- 

21 

less telephone and the nearest receiving antenna. 
Wireless providers often depend on poles, ducts, con- 
duits, and rights-of-way 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. See Promotion of Competitive 
Networks in Local Telecommunications Markets, 14 
F.C.C.R. 12673, 12712, ¶ 71 (1999). 

The court of appeals’ decision might have rested on a 
misunderstanding of these 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. More generally, however, 
Section 224 should simply be read according to its plain 
language, which extends to “any” attachment of any 
telecommunications carrier, including any and all 
attachments of wireless carriers. 47 U.S.C. 224(a)(4) 
(1994 & Supp. IV 1998). This Court’s review is needed 
to correct the Eleventh Circuit’s rejection of that 
important statutory mandate. 

22 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

CHRISTOPHER J. WRIGHT 

General Counsel 

JONATHAN E. NUECHTERLEIN 

Deputy General Counsel 

JOHN E. INGLE 

Deputy Associate General 

Counsel 

GREGORY M. CHRISTOPHER 

Counsel 
Federal Communications 

Commission 
SETH P. WAXMAN 

Solicitor General 

A. DOUGLAS MELAMED 

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 

NOVEMBER 2000