U.S. Supreme Court Reverses Decision on Wireless Pole Attachments and Commingled High-speed Internet/cable Television Services

On January 16, 2002, the U.S. Supreme Court issued a much anticipated opinion reversing a decision from the United States Court of Appeals for the Eleventh Circuit. The case is National Cable & Telecommunications Association, Inc. v. Gulf Power Co., et al., 122 S.Ct. 782 (2002), and it centers on the Pole Attachment Act ("PAA"), 47 U.S.C. § 224, and the Federal Communications Commission's ("FCC") Pole Attachment Order, In re Implementation of Section 703(e) of the Telecommunications Act of 1996; Amendment to the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd 6777 (1998).

As with most modern telecommunications cases, this one also stems from the Federal Telecommunications Act of 1996 ("FTA96"). Originally, the PAA defined the term "pole attachment" to cover providers of cable television service. However, when Congress passed FTA96 the definition was expanded to cover "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." As a result, questions eventually ensued as to whether the PAA conferred jurisdiction to the FCC over "commingled services" (i.e. the provisioning of high-speed Internet service and traditional cable television service over the same wires) and whether the PAA covered attachments by wireless telecommunications providers. In its Pole Attachment Order, the FCC answered both of these questions in the affirmative.

Challenges to the Pole Attachment Order were subsequently raised in a number of courts by various pole-owning utilities. These challenges were consolidated in the Eleventh Circuit and resulted in an opinion reversing the FCC on both issues. More specifically, the Eleventh Circuit held that: (1) commingled services are not covered by the PAA; and (2) the PAA does not grant the FCC authority to regulate wireless communications. The Eleventh Circuit's decision was met with disappointment by many and was accompanied by a well reasoned dissent from Circuit Judge Carnes. Shortly thereafter, the U.S. Supreme Court granted writ of certiorari and issued an order staying the Eleventh Circuit's decision pending further review.

Nevertheless, for certain segments of the CLEC industry the decision had a profound and immediate impact because ILECs like Southwestern Bell Telephone Company (basically ignoring the U.S. Supreme Court's stay order) still tried to rely on the decision to block CLECs from placing any kind of wireless attachment on ILEC operated poles. For example, in Texas last year, Southwestern Bell Telephone Company tried to deny at least one CLEC the right to attach any kind of wireless equipment to its poles. That CLEC was forced to petition the Public Utility Commission of Texas ("Texas PUC") for an arbitration under FTA96. While the Texas PUC eventually denied SWBT's efforts to discourage competition and ordered it to provide the CLEC with nondiscriminatory access to its poles, the CLEC was still forced into a lengthy and expensive arbitration proceeding.

Fortunately, the U.S. Supreme Court, in an opinion written by Justice Kennedy, recently reversed the Eleventh Circuit's Gulf Power ruling, holding that "[t]he attachments at issue in this suit - ones which provide commingled cable and Internet services and ones which provide wireless telecommunications - fall within the heartland of the Act. The agency's [FCC] decision, therefore, to assert jurisdiction over these attachments is reasonable and entitled to our deference."

While the Supreme Court's recent decision does not mean an end to arbitrations and litigation over similar issues, it does mean that the FCC's Pole Attachment rules remain in effect. Thus, SWBT and its fellow ILECs should have a more difficult time trying to deny CLECs access to poles in the future.

This article is intended to provide only a brief overview of the Gulf Power decision. If you have any questions regarding the subject matter of this article or if you would like an electronic copy of the Supreme Court's Gulf Power decision, you may contact the author, Elliott S. Cappuccio, through the link provided above.