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 

REPLY BRIEF FOR THE PETITIONERS 

CHRISTOPHER J. WRIGHT 

General Counsel 
Federal Communications 

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

Solicitor General 

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

TABLE OF CONTENTS 

Page 

I. The Pole Attachments Act applies to cable 

television systems that provide commingled 

cable television services and Internet Access ........... 

2 

II. The Pole Attachments Act fully applies to 

providers of wireless Telecommunications 

services ............................................................................. 9 

TABLE OF AUTHORITIES 

Cases: 

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

8 

FPC v. Hope Natural Gas Co., 320 U.S. 591 

(1944) ........................................................................................ 4 

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

5 

National Broad. Co. v. United States, 319 U.S. 190 

(1943) ........................................................................................ 4 

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

5 

United States v. Rock Royal Co-op., Inc., 307 U.S. 

533 (1939) ................................................................................. 

4 

Yakus v. United States, 321 U.S. 414 (1944) ..................... 

4 

Constitution and statutes: 

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

7, 8 

Pole Attachments Act, 47 U.S.C. 224: 

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

5 

§ 224(a)(1)(4), 47 U.S.C. 224(a)(1)(4) (Supp. IV 

1998) ............................................................................... 8 

§ 224(a)(4), 47 U.S.C. 224(a)(4) (Supp. IV 

1998) ............................................................................... 

2, 8, 9 

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

(1998) ............................................................................. 6 

§ 244(b)(1), 47 U.S.C. 224(b)(1) .................................. 

2, 3, 5, 9 

§ 224(d)(3), 47 U.S.C. 224(d)(3) .......................................... 
3 

§ 224(e)(1), 47 U.S.C. 224(e)(1) ........................................... 3 

(I) 

II 

Statutes–Continued: Page 

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

Tit. VII, 110 Stat. 56 ............................................................. 
1 

47 U.S.C. 157 note .................................................................... 
8 

47 U.S.C. 153(46) (Supp. IV 1998) ........................................ 
9 

47 U.S.C. 251(h) (Supp. IV 1998) .......................................... 
6 

Miscellaneous: 

S. Rep. No. 580, 95th Cong. 1st Sess. (1977) ........................ 7, 10 

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 

REPLY BRIEF FOR THE PETITIONERS 

The two issues presented in the petition for certiorari 
share a common feature. Both involve interpretation 
by the FCC of unqualified statutory language in the 
Pole Attachments Act, 47 U.S.C. 224, in accordance 
with its plain and unambiguous meaning. In both 
rulings challenged in the petition, the court of appeals 
not only contradicted the plain meaning of the Act, but 
also rejected the interpretation of the Act adopted by 
the agency charged with implementing it. The court of 
appeals’ decision thereby interfered with the achieve- 
ment of national communications policy objectives that 
Congress embodied in the Telecommunications Act of 
1996, Pub. L. No. 104-104, Tit. VII, 110 Stat. 56. Re- 
spondents do not dispute that the decision of the court 
of appeals in this consolidated proceeding will have 
nationwide significance, and that there will likely be no 
opportunity for any other court of appeals to consider 

(1) 

2 

the validity of the FCC rules at issue. See Pet. 17-18. 
Further review is therefore warranted. 

I. The Pole Attachments Act Applies To Cable Tele- 
vision Systems That Provide Commingled Cable 
Television Services And Internet Access 

Section 224(b) of the Pole Attachments Act provides 
that “the Commission shall regulate the rates, terms, 
and conditions for pole attachments to provide that 
such rates, terms, and conditions are just and reason- 
able.” 47 U.S.C. 224(b)(1). In turn, the Act provides 
that “[t]he term ‘pole attachment’ means any attach- 
ment by a cable television system or provider of tele- 
communications service to a pole, duct, conduit, or 
right-of-way owned or controlled by a utility.” 47 
U.S.C. 224(a)(4) (Supp. IV 1998). Those provisions 
unambiguously authorize the FCC to provide for “just 
and reasonable” rates for pole attachments “by a cable 
television system.” The court of appeals’ conclusion 
that the FCC loses its authority to regulate the rate for 
a pole attachment if the cable television system uses 
the pole attachment for the provision of other services 
—such as Internet access—in addition to conventional 
video programming cannot be squared with the plain 
language of Section 224(a)(4) and (b)(1). 

1. Respondents’ core argument is that in other 
provisions of the Act, Congress “authorize[d] the FCC 
to establish rates for pole attachments in two specific 
cases, one where the attachment is for ‘solely cable ser- 
vice’ under Section 224(d), the other where the attach- 
ment is for ‘telecommunications service’ under Section 
224(e),” and that “[n]o other rates are authorized.” Br. 
in Opp. 6-7. The terms of Section 224(a)(4) and (b)(1), 
however, plainly do authorize other rates: as stated 
above, they authorize “just and reasonable” rates for 
“any” pole attachment “by a cable television system.” 

3 

There is no provision of the Pole Attachments Act or of 
any other federal statute that revokes the authorization 
granted in Section 224(a) and (b). Accordingly, that 
authorization is a valid source of authority for the FCC 
to regulate pole attachments by cable television sys- 
tems, regardless of whether other commingled services 
(i.e., Internet access) in addition to conventional video 
programming are provided through those attachments. 

Respondents argue that “the FCC’s general grant of 
power in Section 224(b)(1) to regulate pole attachments 
is defined and limited by the specific standards set out 
in subsections (d) and (e) for attachments used for cable 
service and telecommunications service.” Br. in Opp. 9. 
Those provisions, however, “define” the FCC’s general 
grant of power only in the sense that they provide 
specific formulas for determining a just and reasonable 
rate for the particular pole attachments to which they 
apply. In the case of subsection (d), that means “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), and in the case of subsection 
(e), that means “the charges for pole attachments used 
by telecommunications carriers to provide telecom- 
munications services” after an interim period, 47 U.S.C. 
224(e)(1) (Supp. IV 1998). Nothing in either subsection 
purports to “define,” much less to “limit,” the FCC’s 
authority to set a “just and reasonable” rate in any 
other context. Thus, if (as respondents contend) cable 
modem service should be classified neither as a “cable 
service” nor as a “telecommunications service,” that 
conclusion would simply leave undisturbed the FCC’s 
broad discretion to set a “just and reasonable” rate for 
attachments used to provide cable modem service. It 
would certainly not mean that cable companies would 
lose all protection from monopolistic rate practices 
whenever they use their wires, even in part, to provide 

4 

the broadband Internet services that Congress sought 
to promote. 

2. Respondents argue that “Congress can not rea- 
sonably be assumed to have provided * * * highly 
detailed standards for cable and telecommunications 
attachments [in subsections (d) and (e)], yet to have 
provided no standards for attachments for other ser- 
vices (including Internet services).” Br. in Opp. 9. It is 
commonplace, however, for legislatures to delegate 
ratemaking and similar authority to an agency on com- 
parably broad terms. See, e.g., FPC v. Hope Natural 
Gas Co., 320 U.S. 591, 600-603 (1944) (delegation to 
Federal Power Commission to determine “just and 
reasonable” rates); United States v. Rock Royal Co-op., 
Inc., 307 U.S. 533, 577 (1939) (delegation to Secretary of 
Agriculture to “fix[]” prices to a level that was “in the 
public interest”); Yakus v. United States, 321 U.S. 414, 
427 (1944) (delegation to Price Administrator to fix 
commodity prices that would be “fair” and “equitable”); 
National Broad. Co. v. United States, 319 U.S. 190, 225 
(1943) (delegation to FCC to regulate broadcast licens- 
ing as “public interest, convenience, or necessity” 
require). There is no need in this case to “assume[],” as 
respondents put it, that Congress made a broad delega- 
tion of ratemaking authority in the Pole Attachments 
Act; rather, the terms of the Act quite explicitly state 
that that was Congress’s approach, and it was a rea- 
sonable one that Congress has frequently used in 
ratemaking and similar contexts. 

3. Respondents argue that granting further review 
in this case “would require this Court to rule on 
whether Internet service is a ‘cable service’ or a ‘tele- 
communications service.’ ” Br. in Opp. 13. That issue 
—which has ramifications that extend far beyond this 
case—is currently under consideration by the FCC and 
should be addressed in the first instance by the FCC. 

5 

See Pet. 15 n.4. It is not a question presented in this 
case, since this case presents only the question whether 
the FCC has any authority to regulate the rates for 
pole attachments by cable television systems that 
provide commingled Internet access under Section 
224(a) and (b). That question can easily be answered 
without reference to whether Internet access is a “cable 
service,” a “telecommunications service,” or some other 
form of service. Section 224(a) and (b) authorize the 
FCC to ensure just and reasonable rates for “any 
attachment by a cable television system” (emphasis 
added); those provisions do not require further 
classification of the services for which the attachment is 
used. 

Even if that were not the case, there would still be no 
need for this Court in the first instance to determine 
the proper statutory characterization of Internet 
access. If the Court concluded that FCC authority over 
pole attachments by cable television systems that 
provide commingled Internet access depended on 
whether such Internet access is a “cable service,” a 
“telecommunications service,” or some other kind of 
service, the appropriate course for this Court would be 
to remand the case to the FCC—the step the court of 
appeals should itself have taken when it ruled (mis- 
takenly) that the characterization of Internet access 
was determinative. Because implementation of the 
federal communications law is entrusted to the FCC, it 
is that agency—not this Court and certainly not the 
court of appeals—that should address the charac- 
terization issue in the first instance See IRS v. FLRA, 
494 U.S. 922, 933 (1990) (citing SEC v. Chenery Corp., 
318 U.S. 80 (1943)). 

4. Section 224(a)(5) of the Act provides that “the 
term ‘telecommunications carrier’ * * * does not in- 
clude any incumbent local exchange carrier,” 47 U.S.C. 

6 

224(a)(5) (Supp. IV 1998), and it thereby excludes such 
incumbent local exchange carriers (ILECs) from the 
rate protections of the Act.1 Respondents argue that 
Congress would not have wanted, as a matter of policy, 
to provide rate protection for pole attachments by cable 
television systems that provide commingled video 
programming and Internet access, while excluding 
ILECs, which may also be providing Internet access, 
from those same protections. Br. in Opp. 12. The short 
answer to that contention is that the best guide to the 
policy Congress intended is the terms of the statute 
that it enacted. The terms of the Pole Attachments Act 
unambiguously provide rate protection for cable tele- 
vision systems, even if they furnish commingled inter- 
net access, but not for ILECs, even if they also provide 
Internet access. The wisdom of that policy is a question 
for Congress to consider in formulating further legis- 
lation, not the courts. 

In any event, the policy choices that Congress em- 
bodied in the Pole Attachments Act were sound. Re- 
spondents themselves note that Congress originally 
enacted the Pole Attachments Act to address problems 
brought to its attention when “[c]able companies * * * 
complained [that] there were no practical alternatives 
to stringing their cables on utility poles, and that some 
utilities (principally telephone companies) had ex- 
ploited their ‘monopoly’ position over these ‘bottleneck 
facilities’ by charging excessive rates for pole attach- 
ments.” Br. in Opp. 1 (emphasis added). Congress had 

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

7 

long ago found when it first enacted the Pole Attach- 
ments Act that “poles, ducts, and conduits are usually 
owned by telephone and electric power utility com- 
panies, which often have entered into joint use or 
ownership agreements.” S. Rep. No. 580, 95th Cong., 
1st Sess. 12 (1977) (emphasis added); see also ibid. 
(noting that agreements between telephone and electric 
utilities usually provide that “communications pole 
space is * * * under the control of the telephone 
company”). On that basis, Congress concluded that 
there was no need to provide rate protection for pole 
attachments to incumbent telephone carriers, i.e., 
ILECs. It is significant, however, that Congress chose 
only to except incumbent local exchange carriers from 
the rate protections of the Act. Congress granted rate 
protection to non-incumbent carriers, which, unlike 
incumbent carriers but like cable television systems, 
would not have had their own poles to which to attach 
the necessary wires. See also NCTA Reply Br. 7 n.2. 

5. Finally, respondents argue that review is unnec- 
essary because the Takings Clause in any event re- 
quires that they be permitted to charge whatever the 
market will bear for pole attachments, Br. in Opp. 15- 
16, and because “[c]able companies almost always have 
alternatives for the deployment of facilities to provide 
high-speed Internet access,” id. at 16-17. The premise 
of both of those arguments is that the court of appeals’ 
misconstruction of the Pole Attachments Act is of no 
consequence, because, respondents suggest, the Act 
serves little or no purpose in any event. This Court 
ought not accept a premise that is so at odds with Con- 
gress’s determination in 1996 that the Act should be 
amended substantially to provide broader protections. 
In any event, respondents’ Takings Clause contention 
is wrong because, even if the Pole Attachments Act as 
amended constitutes a taking, that would surely not 

8 

entitle respondents, as a matter of just compensation, 
to charge monopoly rents—rather than “just and 
reasonable” rates—for pole attachments. See FCC v. 
Florida Power Co., 480 U.S. 245, 253-254 (1987). Re- 
spondents are also wrong in claiming that cable tele- 
vision systems always have economically feasible 
alternatives to attaching their wires to “a pole, duct, 
conduit, or right-of-way owned or controlled by a 
utility.” 47 U.S.C. 224(a)(1)(4) (Supp. IV 1998).2 Obvi- 
ously, the least expensive way for cable television 
systems to provide Internet access to their existing 
customers is likely to be to provide such access through 
the same wires attached to the same pole that they use 
for conventional video programming services. Requir- 
ing cable companies to provide Internet service 
through other, more expensive, means to avoid the 
monopoly prices that utilities would charge for pole 
attachments would often be impracticable and would in 
any event drive up the price of the Internet access that 
cable television systems can provide. That in turn 
would directly defeat Congress’s declared purpose to 
“encourage the deployment” of broadband (e.g., cable 
modem) capability. 47 U.S.C. 157 note. 

2 Even if true, respondents' contention (Br. in Opp. 17) that 
cable companies are likely in any event to place new wires under- 
ground is irrelevant. The Pole Attachments Act provides rate pro- 
tection for "any attachment," not merely to a "pole," which would be 
above-ground, but also to a "duct, conduit, or right-of-way," which 
may be above-ground or underground. 47 U.S.C. 224(a)(4) (Supp. 
IV 1998). Moreover, the Pole Attachments Act provides rate pro- 
tections not only for new pole attachments, but also for the vast 
number of existing above-ground pole attachments used by cable 
companies to provide their services. 

9 

II. The Pole Attachments Act Fully Applies To Pro- 
viders Of Wireless Telecommunications Services 

The plain language of the Act makes clear that it 
extends to wireless, as well as wireline, telecommuni- 
cations providers. As we have noted, see p. 2, supra, 
Section 224(b)(1) authorizes the FCC to require that 
just and reasonable rates be charged for “pole attach- 
ments,” and Section 224(a)(4) defines a “pole attach- 
ment” 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) (Supp. IV 1998) (em- 
phasis added). Wireless carriers provide telecommuni- 
cations service no less than wireline carriers, and pole 
attachments used for wireless telecommunications 
services are accordingly protected by the plain terms of 
the Act. The applicable definitional provision elimi- 
nates any possible doubt on that point, since it defines 
“[t]elecommunications service” as the offering of tele- 
communications for a fee directly to the public “regard- 
less of the facilities used.” 47 U.S.C. 153(46) (Supp. IV 
1998) (emphasis added). Although respondent (Br. in 
Opp. 19-20) and the court of appeals (Pet. App. 21a-22a) 
correctly note that there are provisions of the Act that 
do refer to wires, see Br. in Opp. 19-20, none of them 
purports to—or can reasonably be read to—exclude 
wireless telecommunications services from the Act’s 
protections. There is no logical basis in the provisions 
of the Act for the court of appeals’ conclusion that it 
provides less protection to providers of wireless tele- 
communications services than to providers of wireline 
telecommunications services. 

Respondents argue that the Act “is designed to deal 
with the potential exercise of monopoly power over 
bottleneck facilities” and that “[u]tility poles are not, 

10 

even potentially, bottleneck facilities for wireless equip- 
ment.” Br. in Opp. 18. That argument, like the court of 
appeals’ reasoning that it mirrors, see Pet. App. 24a- 
26a, begins from a mistaken factual premise. As amici 
AT&T Wireless Services et al., demonstrate (Amici Br. 
14-15), a “pole, duct, conduit, or right-of-way” may in 
fact be a bottleneck facility for a wireless carrier in a 
wide variety of circumstances.3 

In any event, Congress did not choose to limit the 
Act by requiring a showing that a “pole, conduit, duct, 
or right-of-way” is a “bottleneck facility” before rates 
for attachments to it receive the protection of the Act. 
Indeed, neither the term “bottleneck facility” nor any 
synonym for it appears in the Act. To the contrary, the 
Act was designed to protect entities that utilize pole 
attachments “out of necessity or business convenience.” 
S. Rep. No. 580, supra, at 13 (emphasis added). 

For the reasons stated above and in the petition, the 
petition for a writ of certiorari should be granted. 

Respectfully submitted. 

CHRISTOPHER J. WRIGHT 

General Counsel 
Federal Communications 

Commission 
SETH P. WAXMAN 

Solicitor General 

JANUARY 2001 

3 The fact that wireless carriers themselves did or did not 
directly participate in this case would not be a basis for granting or 
denying the petition for certiorari. We note, however, that respon- 
dent's claim that wireless carriers are uninterested in the question 
presented, see Br. in Opp. 18 ("[N]or has any wireless company 
supported the Government's petition."), is demonstrably false. See 
Br. of Amici AT&T Wireless Services, Inc. et al., in Support of 
Petitioners (filed Dec. 27, 2000).