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

534 U.S. 327, 122 S. Ct. 782, 151 L. Ed. 2d 794, 2002 U.S. LEXIS 491
CourtSupreme Court of the United States
DecidedJanuary 16, 2002
Docket00-832
StatusPublished
Cited by89 cases

This text of 534 U.S. 327 (National Cable & Telecommunications Assn., Inc. v. Gulf Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 122 S. Ct. 782, 151 L. Ed. 2d 794, 2002 U.S. LEXIS 491 (2002).

Opinions

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, [331]*331terms, 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’ [332]*332precludes 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. § 2842 (1994 ed.). The challenges were consolidated in the Court of Appeals for the Eleventh Circuit, see § 2112(a), 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 pole 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).

[333]*333II

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) (1994 ed.), and defines these to include “any attachment by a cable television system,” § 224(a)(4) (1994 ed., Supp. V). 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 [334]*334rates 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)).

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534 U.S. 327, 122 S. Ct. 782, 151 L. Ed. 2d 794, 2002 U.S. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-cable-telecommunications-assn-inc-v-gulf-power-co-scotus-2002.