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U.S. Supreme Court Upholds Fcc's Right To Set Pole Attachment Fees

In National Cable & Telecommunications Association, Inc., v. Gulf Power Co., et al, the U.S. Supreme Court upheld the Federal Communication Commission's ("FCC") authority to limit fees that cable telecommunications service providers pay for the attachment of wires and other facilities to owners of utility poles. The Supreme Court held that (1) cable television systems utility pole attachments that provide high speed internet access commingled with cable television services were "attachments" covered by the Pole Attachment Act of 1978, 47 U.S.C. - 224 (the "Pole Attachment Act" or "Act"), and (2) wireless telecommunication providers' utility pole attachments are "attachments" covered by the Act regardless of whether attachments consisted of wireline facilities or distinctively wireless equipment.

The Pole Attachment Act requires the FCC to set reasonable rates, terms, and conditions for certain attachments to telephone and electric utility poles. 47 U.S.C. - 224(b)(v). A pole attachment includes any attachment by cable television system or provider of telecommunications service to a pole, conduit, right of way. 47 U.S.C. - 224(a)(4). Certain pole owning utilities challenged an FCC decision that interpreted the Act to allow the FCC to set rates, terms and conditions for lease of pole attachments for commingled high-speed internet and traditional cable television services and attachments by wireless telecommunications providers. The utility pole owners argued that the Act only covered attachments used solely to provide cable television service and for attachments that telecommunications carriers used to provide telecommunications services. Absent FCC regulation under the Act, all pole owning utilities would be free to charge whatever rates they believed were necessary to rent space on their poles for either high speed internet service or wireless services.

The FCC determined that it had authority under the Act to regulate pole attachments for high speed internet commingled with cable television service and wireless telecommunications services. The pole owning utilities challenged this FCC decision in the United States Court of Appeals for the Eleventh Circuit, 208 F.3d 1263 (2000), which reversed the FCC decision, holding that attachments of cable television systems used to provide commingled telecommunications services were not covered by the Act and that attachments for the telecommunications carriers used to provide wireless services were also not covered by the Act.

The Supreme Court held that the Act covers attachments that provide both high-speed internet access at the same time as cable services, and that the Act also allows the FCC to set the rates for wireless telecommunications equipment. Thus, the Supreme Court determined that a cable attached to a pole owned by a cable television company that is used to provide a high-speed internet service is an attachment by cable television system, because the Act allows "attachments by" cable systems. The addition of high-speed internet access on the cable does not change the character of the entity that places the attachment on the pole. The Supreme Court added that the Act only limits attachment by the entity doing the attaching, not by what the entity attaches.

Furthermore, the Supreme Court held that the FCC has the power to regulate wireless telecommunications provider's equipment, and that the Pole Attachment Act covers both wireline or wireless attachments for wireless carriers. The Supreme Court stated that the Act requires FCC regulation of a pole attachment which is defined as "any attachment by a . . . provider of telecommunication service." The Communications Act of 1934, as amended, 47 U.S.C. 151 et seq., in turn, defines "telecommunication service," as "the offering of telecommunications to the public for a fee regardless of the facilities used. 47 U.S.C. - 15.4(46) "Therefore, a provider of wireless telecommunications services is a provider of telecommunications service, so its attachment to a utility pole is a pole attachment under the Act. Accordingly, the Supreme Court concluded that FCC did not act unreasonably in asserting jurisdiction over attachments to utility poles for high-speed internet access and wireless equipment.

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For more information call Michael L. Glaser at (303) 757-1600.

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