Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

National Cable & Telecommunications Association, Inc. v. Gulf Power Co.

January 16, 2002

NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, INC., PETITIONER
v.
GULF POWER COMPANY ET AL.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES, PETITIONERS
v.
GULF POWER COMPANY ET AL.



Court Below: 208 F. 3d 1263

SYLLABUS BY THE COURT

OCTOBER TERM, 2001

The Pole Attachments Act requires the Federal Communications Commission (FCC) to set reasonable rates, terms, and conditions for certain attachments to telephone and electric poles. 47 U. S. C. §224(b). A "pole attachment" includes "any attachment by a cable television system or provider of telecommunications service to a [utility's] pole, conduit, or right-of-way." §224(a)(4). Certain pole-owning utilities challenged an FCC order that interpreted the Act to cover pole attachments for commingled high-speed Internet and traditional cable television services and attachments by wireless telecommunications providers. After the challenges were consolidated, the Eleventh Circuit reversed the FCC on both points, holding that commingled services are not covered by either of the Act's two specific rate formulas -- for attachments used "solely to provide cable service," §224(d)(3), and for attachments that telecommunications carriers use for "telecommunication services," §224(e)(1) -- and so not covered by the Act. The Eleventh Circuit also held that the Act does not give the FCC authority to regulate wireless communications.

Held:

1. The Act covers attachments that provide high-speed Internet access at the same time as cable television. Pp. 411.

(a) 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. P. 4.

(b) Respondents cannot prove that the FCC's interpretation is unreasonable. This Court need not consider in the first instance the argument that a facility providing commingled cable television and Internet service is a "cable television system" only "to the extent that" it provides cable television, because neither the Eleventh Circuit nor the FCC has had the opportunity to pass upon it. This does not leave the cases in doubt, however. Because "by" limits pole attachments by who is doing the attaching, not by what is attached, an attachment by a "cable television system" is an attachment "by" that system whether or not it does other things as well. The Eleventh Circuit's theory that §§224(d)(3)'s and (e)(1)'s just and reasonable rates formulas narrow §224(b)(1)'s general rate-setting mandate has no foundation in the plain language of §§224(a)(4) and (b). Neither subsection (d)'s and (e)'s text nor the Act's structure suggests that these are exclusive rates, for the sum of the transactions addressed by the stated rate formulas is less than the theoretical coverage of the Act as a whole. Likewise, 1996 amendments to the Act do not suggest an intent to decrease the FCC's jurisdiction. Because §§224(d) and (e) work no limitation on §§224(a)(4) and (b), this Court need not decide the scope of the former. The FCC had to go one step further, because once it decided that it had jurisdiction over commingled services, it then had to set a just and reasonable rate. In doing so it found that Internet services are not telecommunications services, but that it need not decide whether they are cable services. Respondents are frustrated by the FCC's refusal to categorize Internet services and its contingent decision that commingled services warrant the §224(d) rate even if they are not cable service. However, the FCC cannot be faulted for dodging hard questions when easier ones are dispositive, and a challenge to the rate chosen by the FCC is not before this Court. Even if the FCC decides, in the end, that Internet service is not "cable service," the result obtained by its interpretation of §§224(a)(4) and (b) is sensible. The subject matter here is technical, complex, and dynamic; and, as a general rule, agencies have authority to fill gaps where statutes are silent. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844. Pp. 411.

2. 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, §224(b), which is defined as "any attachment by a ... provider of telecommunications service," §224(a)(4). "Telecommunications service," in turn, is defined as the offering of telecommunications to the public for a fee, "regardless of the facilities used." §154(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 §§224(a)(1) and (d)(2) is unavailing, for those sections do not limit which pole attachments are covered and thus do not limit §224(a)(4) or §224(b). Even if they did, respondents would have to contend with the fact that §224(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. Pp. 1113.

3. Because the attachments at issue fall within the Act's heartland, there is no need either to enunciate or to disclaim a specific limiting principle based on the possibility that a literal interpretation of "any attachment" would lead to the absurd result that the Act would cover attachments such as, e.g., clotheslines. Attachments of other sorts may be examined by the agency in the first instance. P. 13.

The opinion of the court was delivered by: Justice Kennedy

534 U. S. ____ (2002)

On Writs of Certiorari to the United States Court of Appeals for the Eleventh Circuit

I.

Since the inception of cable television, cable companies have sought the means to run a wire into the home of each subscriber. They have found it convenient, and often essential, to lease space for their cables on telephone and electric utility poles. Utilities, in turn, have found it convenient to charge monopoly rents.

Congress first addressed these transactions in 1978, by enacting the Pole Attachments Act, 92 Stat. 35, as amended, 47 U. S. C. §224 (1994 ed.), which requires the Federal Communications Commission (FCC) to "regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable." §224(b). (The Act is set forth in full in the Appendix, infra.) The cases now before us present two questions regarding the scope of the Act. First, does the Act reach attachments that provide both cable television and high-speed ("broadband") Internet service? Second, does it reach attachments by wireless telecommunications providers? Both questions require us to interpret what constitutes a "pole attachment" under the Act.

In the original Act 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," §224(a)(4). The Telecommunications Act of 1996, §703, 110 Stat. 150, expanded the definition to include, as an additional regulated category, "any attachment by a ... provider of telecommunications service." §224(a)(4) (1994 ed., Supp. V).

Cable companies had begun providing high-speed Internet service, as well as traditional cable television, over their wires even before 1996. The FCC had interpreted the Act to cover pole attachments for these commingled services, and its interpretation had been approved by the Court of Appeals for the District of Columbia Circuit. Texas Util. Elec. Co. v. FCC, 997 F. 2d 925, 927, 929 (1993). Finding nothing in the 1996 amendments to change its view on this question, the FCC continued to assert jurisdiction over pole attachments for these particular commingled services. In re Implementation of Section 703(e) of the Telecommunications Act of 1996: Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd. 6777 (1998). In the same order the FCC concluded further that the amended Act covers attachments by wireless telecommunications providers. "[T]he use of the word `any' precludes a position that Congress intended to distinguish between wire and wireless attachments." Id., at 6798.

Certain pole-owning utilities challenged the FCC's order in various Courts of Appeals. See 47 U. S. C. §402(a) (1994 ed.); 28 U. S. C. §2342 (1994 ed.). The challenges were consolidated in the Court of Appeals for the Eleventh Circuit, see 28 U. S. C. §2112(a) (1994 ed.), which reversed the FCC on both points. 208 F. 3d 1263 (2000). On the question of commingled services, the court held that the two specific rate formulas in 47 U. S. C. §§224(d)(3) and (e)(1) (1994 ed., Supp. V) narrow the general definition of pole attachments. The first formula applies to "any attachment used by a cable television system solely to provide cable service," §224(d)(3), and the second applies to "pole attachments used by telecommunications carriers to provide telecommunications services," §224(e)(1). The majority concluded that attachments for commingled services are neither, and that "no other rates are authorized." 208 F. 3d, at 1276, n. 29. Because it found that neither rate formula covers commingled services, it ruled those attachments must be excluded from the Act's coverage.

On the wireless question, the majority relied on the statutory definition of "utility": "any person ... who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications." §224(a)(1). The majority concluded that the definition of "utility" informed the definition of "pole attachment," restricting it to attachments used, at least in part, for wire communications. Attachments for wireless communications, it held, are excluded by negative implication. Id., at 1274.

Judge Carnes dissented on these two issues. In his view, §§224(a)(4) and (b) "unambiguously giv[e] the FCC regulatory authority over wireless telecommunications service and Internet service." Id., at 1281 (opinion concurring in part and dissenting in part). We granted certiorari. 531 U. S. 1125 (2001).

II.

We turn first to the question whether the Act applies to attachments that provide high-speed Internet access at the same time as cable television, the commingled services at issue here. As we have noted, the Act requires the FCC to "regulate the rates, terms, and conditions for pole attachments," §224(b), and defines these to include "any attachment by a cable television system," §224(a)(4). These provisions resolve the question.

No one disputes that a cable attached by a cable television company, which provides only cable television service, is an attachment "by a cable television system." If one day its cable provides high-speed Internet access, in addition to cable television service, the cable does not cease, at that instant, to be an attachment "by a cable television system." The addition of a service does not change the character of the attaching entity -- the entity the attachment is "by." And this is what matters under the statute.

This is our own, best reading of the statute, which we find unambiguous. If the statute were thought ambiguous, however, the FCC's reading must be accepted nonetheless, provided it is a reasonable interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-844 (1984). Respondents' burden, then, is not merely to refute the proposition that "any attachment" means "any attachment"; they must prove also the FCC's interpretation is unreasonable. This they cannot do.

Some respondents now advance an interpretation of the statute not presented to the Court of Appeals, or, so far as our review discloses, to the FCC. They contend it is wrong to concentrate on whose attachment is at issue; the question, they say, is what does the attachment do? Under this approach, an attachment is only an attachment by a cable television system to the extent it is used to provide cable television. To the extent it does other things, it falls outside the ambit of the Act, and respondents may charge whatever rates they choose. To make this argument, respondents rely on a statutory definition of "cable system" (which the FCC treats as synonymous with "cable television system," see 47 CFR §76.5(a) (2000)). The definition begins as follows: "[T]he term `cable system' means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community." 47 U. S. C. §522(7) (1994 ed., Supp. V). The first part of the definition would appear to cover commingled services, but the definition goes on to exclude "a facility of a common carrier ... except that such facility shall be considered a cable system ... to the extent that 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." Ibid.

Respondents assert that "most major cable companies are now common carriers [since they also provide] residential and/or commercial telephone service." Brief for Respondents American Electric Power Service Corp. et al. 20. If so, they contend, then for purposes of §224(a)(4), a facility that provides commingled cable television and Internet service is a "cable television system" only "to the extent that" it provides cable television.

Even if a cable company is a common carrier because it provides telephone service, of course, the attachment might still fall under the second half of the "pole attachments" definition: "any attachment ... by a provider of telecommunications service." §224(a)(4). This argument, and the related assertion that "most major cable companies are now common carriers," need not be considered by us in the first instance, when neither the FCC nor the Court of Appeals has had the opportunity to pass upon the points. There is a factual premise here, as well as an application of the statute to the facts, that the FCC and the Court of Appeals ought to have the opportunity to address in the first instance. This does not leave the cases in doubt, however. Even if a "cable television system" is best thought of as a certain "facility" rather than a certain type of entity, respondents still must confront the problem that the statute regulates attachments "by" (rather than "of") these facilities. The word "by" still limits pole attachments by who is doing the attaching, not by what is attached. So even if a cable television system is only a cable television system "to the extent" it provides cable television, an "attachment ... by a cable television system" is still (entirely) an attachment "by" a cable television system whether or not it does other things as well.

The Court of Appeals based its ruling on a different theory. The statute sets two different formulas for just and reasonable rates -- one for pole attachments "used by a cable television system solely to provide cable service," §224(d)(3), and one for those "used by telecommunications carriers to provide telecommunications services," §224(e)(1). In a footnote, the Court of Appeals concluded without analysis that "subsections (d) and (e) narrow (b)(1)'s general mandate to set just and reasonable rates." 208 F. 3d, at 1276, n. 29. In its view, Congress would not have provided two specific rate formulas, and yet left a residual category for which the FCC would derive its own view of just and reasonable rates. "The straightforward language of subsections (d) and (e) directs the FCC to establish two specific just and reasonable rates ... ; no other rates are authorized." Ibid.

This conclusion has no foundation in the plain language of §§224(a)(4) and (b). Congress did indeed prescribe two formulas for "just and reasonable" rates in two specific categories; but nothing about the text of §§224(d) and (e), and nothing about the structure of the Act, suggest that these are the exclusive rates allowed. It is true that specific statutory language should control more general language when there is a conflict between the two. Here, however, there is no conflict. The specific controls but only within its self-described scope.

The sum of the transactions addressed by the rate formulas -- §224(d)(3) (attachments "used by a cable television system solely to provide cable service") and §224(e)(1) (attachments "used by telecommunications carriers to provide telecommunications services") -- is less than the theoretical coverage of the Act as a whole. Section 224(a)(4) reaches "any attachment by a cable television system or provider of telecommunications service." The first two subsections are simply subsets of -- but not limitations upon -- the third.

Likewise, nothing about the 1996 amendments suggests an intent to decrease the jurisdiction of the FCC. To the contrary, the amendments' new provisions extend the Act to cover telecommunications. As we have noted, commingled services were covered under the statute as first enacted, in the views of the FCC and the Court of Appeals for the District of Columbia Circuit. Texas Util. Elec. Co. v. FCC, 997 F. 2d 925 (1993). Before 1996, it is true, the grant of authority in §§224(a)(4) and (b) was coextensive with the application of the single rate formula in §224(d). The 1996 amendments limited §224(d) to attachments used by a cable television system "solely to provide cable service," but -- despite Texas Util. Elec. Co. --did not so limit "pole attachment" in §224(a)(4). At this point, co-extensiveness ended. Cable television systems that also provide Internet service are still covered by §§224(a)(4) and (b) -- just as they were before 1996 -- whether or not they are now excluded from the specific rate formula of §224(d); if they are, this would simply mean that the FCC must prescribe just and reasonable rates for them without necessary reliance upon a specific statutory formula devised by Congress.

The Court of Appeals held that §§224(d) and (e) implicitly limit the reach of §§224(a)(4) and (b); as a result, it was compelled to reach the question of the correct categorization of Internet services -- that is, whether these services are "cable service," §224(d)(3), or "telecommunications services," §224(e)(1). It held that they are neither. By contrast, we hold that that §§224(d) and (e) work no limitation on §§224(a)(4) and (b); for this reason, and because we granted certiorari only to determine the scope of the latter provisions, we need not decide the scope of the former.

The FCC had to go a step further, because once it decided that it had jurisdiction over attachments providing commingled services, it then had to set a just and reasonable rate. Again, no rate challenge is before us, but we note that the FCC proceeded in a sensible fashion. It first decided that Internet services are not telecommunications services:

"Several commentators suggested that cable operators providing Internet service should be required to pay the Section 224(e) telecommunications rate. We disagree ... . Under [our] precedent, a cable television system providing Internet service over a commingled facility is not a telecommunications carrier subject to the revised rate mandated by Section 224(e) by virtue of providing Internet service. " 13 FCC Rcd., at 6794-6795 (footnotes omitted).

After deciding Internet services are not telecommunications services, the FCC then found that it did not need to decide whether they are cable services:

"Regardless of whether such commingled services constitute "solely cable services" under Section 224(d)(3), we believe that the subsection (d) rate should apply. If the provision of such services over a cable television system is a "cable service" under Section 224(d)(3), then the rate encompassed by that section would clearly apply. Even if the provision of Internet service over a cable television system is deemed to be neither `cable service' nor `telecommunications service' under the existing definitions, the Commission is still obligated under Section 224(b)(1) to ensure that the `rates, terms and conditions [for pole attachments] are just and reasonable,' ... [a]nd we would, in our discretion, apply the subsection (d) rate as a `just and reasonable rate.' " Id., at 6795-6796 (footnote omitted).

Respondents are frustrated by the FCC's refusal to categorize Internet services, and doubly frustrated by the FCC's contingent decision that even if commingled services are not "cable service," those services nevertheless warrant the §224(d) rate. On the first point, though, decisionmakers sometimes dodge hard questions when easier ones are dispositive; and we cannot fault the FCC for taking this approach. The second point, in essence, is a challenge to the rate the FCC has chosen, a question not now before us.

We note that the FCC, subsequent to the order under review, has reiterated that it has not yet categorized Internet service. See, e.g., Pet. for Cert. in No. 00-843, p. 15, n. 4. It has also suggested a willingness to reconsider its conclusion that Internet services are not telecommunications. See, e.g., In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 15 FCC Rcd. 19287, 19294 (2000). Of course, the FCC has power ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.