Nat'l Cable & Telecommunications Ass'n v Gulf Power

• Decision Date: 16 January 2002
• Docket Number: 00832
• Citation: 534 U.S. 327,151 L.Ed.2d 794,122 S.Ct. 782
• Parties: 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.United States Supreme Court
• Court: U.S. Supreme Court

534 U.S. 327

122 S.Ct. 782

151 L.Ed.2d 794

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.

Nos. 00-832, 00-843

United States Supreme Court

Argued October 2, 2001

Decided January 16, 2002^*

Syllabus

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 Acts 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 Acts 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 Circuits 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 Acts 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, 843844. Pp. 411.

2. Wireless telecommunications providers equipment is susceptible of FCC regulation under the Act. The parties agree that the Act covers wire line attachments by wireless carriers, but dispute whether it covers attachments composed of distinctively wireless equipment. The Acts 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 wire line 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 Acts 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 Acts 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.

208 F.3d 1263, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, Scalia, Ginsburg, and Breyer, JJ., joined, and in which Souter and Thomas, JJ., joined as to Parts I and III.

On writs of certiorari to the united states court of appeals for the eleventh circuit

Justice Kennedy delivered the opinion of the Court.

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 Commissions 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),...