00-832 National Cable & Telecommunications Association, Inc. v. Gulf Power Co., et al.

Listen to this article

This issue is resolved by the Act’s plain text. No one disputes that a cable attached by a cable television company to provide only cable television service is an attachment “by a cable television system.” The addition of high-speed Internet service on the cable does not change the character of the entity the attachment is “by.” And that is what matters under the statute. This is the best reading of an unambiguous statute. Even if the statute were ambiguous, the FCC’s reading must be accepted provided that it is reasonable.

Wireless telecommunications providers’ equipment is susceptible of FCC regulation under the Act. The parties agree that the Act covers wireline attachments by wireless carriers, but dispute whether it covers attachments composed of distinctively wireless equipment. The Act’s text is dispositive. It requires FCC regulation of a pole attachment, º224(b), which is defined as “any attachment by a … provider of telecommunications service,” º224(a)(4).

“Telecommunications service,” in turn, is defined as the offering of telecommunications to the public for a fee, “regardless of the facilities used.” º154(46). A provider of wireless telecommunications service is a “provider of telecommunications service,” so its attachment is a “pole attachment.” Respondents’ attempt to seek refuge in ºº224(a)(1) and (d)(2) is unavailing, for those sections do not limit which pole attachments are covered and thus do not limit º224(a)(4) or º224(b). Even if they did, respondents would have to contend with the fact that º224(d)(2)’s rate formula is based upon the poles’ space usable for attachment of “wires, cable, and associated equipment.” If, as respondents concede, the Act covers wireline attachments by wireless providers, then it must also cover their attachments of associated equipment. The FCC was not unreasonable in declining to draw a distinction between wire-based and wireless associated equipment, which finds no support in the Act’s text and appears quite difficult to draw. And if the text were ambiguous, this Court would defer to the FCC’s judgment on this technical question.”

Local Effect:

The issue has not previously been considered by the Seventh Circuit.

Kennedy, J.; Thomas, J., concurring in part and dissenting in part.

Certiorari to the United States Court of Appeals for the Eleventh Circuit, 208 F.3d 1263, reversed and remanded.