Gulf Power Co. v. Federal Communications Commission

GULF POWER COMPANY; Alabama Power Company, et al., Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Tampa Electric Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Florida Power & Light Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Commonwealth Edison Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Potomac Electric Power Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Texas Utilities Electric Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Union Electric Company, d.b.a. Amerenue, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
American Electric Power Services Corporation, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Duke Energy Corporation, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Virginia Electric and Power Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Carolina Power & Light Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Duquesne Light Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Delmarva Power & Light Company, Petitioner,
v.
Federal Communications Commission and United States of America, Respondents.
Nos. 98-6222, 98-2589, 98-4675, 98-6414, 98-6430, 98-6431, 98-6442, 98-6458, 98-6476 to 98-6478,
98-6485 and 98-6486.
United States Court of Appeals,
Eleventh Circuit.
April 11, 2000.
Petitions for Review of an Order of the Federal Communications Commission.(FCC Nos. 97-151-CS, 98-20-
FCC).
Before TJOFLAT and CARNES, Circuit Judges, and GARWOOD*, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
*
Honorable Will L. Garwood, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
2
The 1996 Pole Attachment Act, 47 U.S.C. § 224 (Supp.II.1996) (the "1996 Act"), gives providers
of cable and telecommunications services the right to attach wires to the poles of power and telephone
companies. If the power and telephone companies will not accept the rent the providers offer to pay, the
Federal Communications Commission (the "FCC" or "Commission") sets the rent. In In re Implementation
of Section 703(e) of the Telecommunications Act of 1996, 13 F.C.C.R. 6777 (1998) (codified at 47 C.F.R. §§
1.1401 -1.1418 (1999)) ("Report and Order "), the FCC promulgated a formula for computing that rent. The
FCC also ruled (in the Report and Order ) that the 1996 Act precluded utilities (power and telephone) from
receiving rent for wires that were "overlashed" to wires previously attached to their poles;1 that the 1996 Act
gave it authority to regulate the placement of wireless communications equipment and attachments for
Internet service on utility poles; and that the Act precluded utilities from receiving rent for unused wires
contained within fiber optic cables, "dark fiber,"2 attached to the poles.
In these consolidated petitions for review of the Report and Order, several power companies3 (the
"Petitioners") challenge the FCC's formula for determining rent on the ground that, when implemented, the
formula will operate to take their property without just compensation, in violation of the Fifth Amendment.
We decline to reach this takings claim, because it is not ripe. The Petitioners also challenge the FCC's other
rulings. As to those rulings, we find unripe their challenge to the overlashing provision of the Report and
Order; we hold that the FCC lacks authority to regulate the placement of wireless equipment on utility poles
1
Overlashing occurs when an attacher physically ties additional cables to cables already attached to a pole.
See Report and Order, 13 F.C.C.R. 6777, 6805 (1998).
2
Dark fiber is "bare capacity and does not involve any of the electronics necessary to transmit or receive
signals over that capacity." Report and Order, 13 F.C.C.R. at 6810.
3
The utilities involved in this proceeding either as petitioners or intervenors are Gulf Power Company,
Alabama Power Company, Georgia Power Company, Southern Company Services, Tampa Electric Company,
Potomac Electric Power Company, Virginia Electric & Power Company, Carolina Power & Light Company,
Duquesne Light Company, Delmarva Power & Light Company, Public Service Electric & Gas Company,
Houston Lighting & Power Company, Texas Utilities Electric Company, American Electric Power Service
Corporation, Commonwealth Edison Company, Duke Energy Corporation, Union Electric Company, and
Florida Power and Light Company.
3
and attachments for Internet service; and that its decision regarding dark fiber constitutes a reasonable
interpretation of the 1996 Act.
I.
A.
From its inception, the cable television industry has attached its cables to the utility poles of power
and telephone companies.4 They have done so because factors such as zoning restrictions, environmental
regulations, and start-up costs have rendered other options infeasible. Despite this dearth of alternatives, the
attachment agreements between cable television companies and utility companies have generally been
voluntary. But, the lack of alternatives has given the power and telephone companies an advantage in
negotiating attachment agreements: their monopoly in the supply of poles that could accommodate television
cables has allowed them, in the past, to charge monopoly rents.
In an effort to solve the monopoly pricing problem, Congress, in 1978, enacted the Pole Attachment
Act, Pub.L. 95-234, 92 Stat. 33 (1978) (codified at 47 U.S.C. § 224 (1994)) (the "1978 Act"), as an
amendment to the Communications Act of 1934. The solution Congress articulated in that act was to specify
a range of rents telephone and power companies could charge the cable television companies they allowed
to attach to their poles.5 Congress' solution, in the 1978 Act, did not, however, change the voluntary nature
4
In 1978, when Congress decided to intervene as described in the text infra, approximately 95 percent of
cable television wires were attached to utility poles because cable television companies owned less than
10,000 poles, compared to over ten million poles owned by the power and telephone companies. See S.Rep.
No. 95-580, at 12-13 (1978), reprinted in 1978 U.S.C.C.A.N. 109, 120-21.
5
Congress expressed this range as:
[N]ot less than the additional costs of providing pole attachments, nor more than an amount
determined by multiplying the percentage of the total usable space, or the percentage of the
total duct or conduit capacity, which is occupied by the pole attachment by the sum of the
operating expenses and actual capital costs of the utility attributable to the entire pole, duct,
conduit, or right-of-way.
47 U.S.C. § 224(d)(1) (1994). This range is more commonly expressed as not less than the
incremental cost of adding a particular attachment, nor more than the fully allocated costs of the pole.
4
of the attachment arrangement. As before, the cable television companies had no right to attach; thus,
utilities could reject a cable television company's offer to attach. As for the attachments already in place, the
1978 Act effectively changed their terms.6 In the event the parties could not agree to the rent and conditions
of an attachment, and the State chose not to regulate the terms of attachments, the FCC would settle the issue.7
The rule the FCC promulgated to implement its authority under the 1978 Act reflected its limited
authority; that rule merely "provided complaint and enforcement procedures to ensure that rates, terms and
conditions for cable television pole attachments [we]re just and reasonable." 47 C.F.R. § 1.1401 (1978). The
rule set forth (1) the procedure for filing a complaint about rents or conditions of attachment, see id.; (2)
factors to be considered by the administrative law judge in determining the lawfulness of the rent or
conditions the utility sought, see id.; and (3) a formula for determining the maximum rent the utility could
receive, see 47 C.F.R. § 1.1409. Under the formula, the maximum rent a utility could charge was the
attacher's proportionate share8 of the bare costs of maintaining the pole and the "carrying charges"9 associated
with the pole.
After the FCC promulgated its rule, several cable television companies in Florida filed complaints
with the FCC, contending that Florida Power Corporation was charging them unreasonable rents to attach.
6
Since the 1978 Act did not give the cable television companies the right to attach, the utilities could have
avoided the FCC's regulation of rent and conditions of attachment under the Act by canceling the existing
arrangements, and having the attachments removed. For obvious reasons, the utilities did not take this step.
7
The FCC already possessed regulatory authority over the telephone industry. See 47 U.S.C. § 151 (1994).
The passage of the 1978 Act gave the FCC the authority to regulate power companies as well, albeit in the
limited manner described in the text. See 47 U.S.C. § 224(a)-(c) (1994).
8
The attacher's proportionate share equaled the amount of space occupied by the attacher divided by the
amount of total "usable space."
9
The FCC regulations do not define carrying charges, but according to Black's Law Dictionary, they are
"[e]xpenses incident to property ownership, such as taxes and upkeep." Black's Law Dictionary 205 (7th
ed.1999). The Department of Agriculture's regulations define carrying charges as incidental costs associated
with storing a commodity before delivery under a sales contract, see 7 C.F.R. § 1488.2(f) (1999), and the
Securities and Exchange Commission defines them in the leverage contract context as service and interest
charges, see 17 C.F.R. § 31.4(l ) (1999).
5
See FCC v. Florida Power Corp., 480 U.S. 245, 248-49, 107 S.Ct. 1107, 1110, 94 L.Ed.2d 282 (1987). The
FCC agreed that the rents were unreasonable and set a lower rent. Florida Power appealed the FCC's decision
to this court, which held that the rent the FCC had set effected a taking of Florida Power's property without
just compensation. Florida Power Corp. v. FCC, 772 F.2d 1537, 1546 (11th Cir.1985). The Supreme Court
reversed, holding that no taking occurred because Florida Power had voluntarily agreed to the cable
companies' attachments. Had Congress, in the 1978 Act, required utilities to allow the attachments, a taking
may have occurred, the court suggested. See Florida Power Corp. 480 U.S. at 251 n. 6, 107 S.Ct. at 1111
n. 6.
The Florida Power decision clarified two fundamental precepts underlying the 1978 Act and the
FCC's implementing regulations: (1) the FCC had narrow authority under the 1978 Act; it could regulate
the power companies only to ensure that, once they consented to an attachment, the conditions of attachment
and the rent they were to receive were reasonable; and (2) the FCC's rent formula was not subject to judicial
review under the Fifth Amendment's Takings Clause because the 1978 Act's voluntary attachment provision
effected no taking for which just compensation would be due.
Not long after the Court decided Florida Power, Congress decided to foster competition in the cable
television industry. To that end, it enacted the Cable Communications Policy Act of 1984, Pub.L. No. 98-
549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. §§ 521-559 (1994)) (the "Cable Act"). Prior to this
enactment, cable television companies operated under exclusive franchises granted by a local government,
usually a municipality. Because these franchises effectively gave the companies monopolies in the franchise
territory, the local governments regulated the rates they could charge subscribers. See H.R.Rep. No. 98-934,
at 23-24, reprinted in 1984 U.S.C.C.A.N. 4655, 4660-61.10 The approach Congress adopted to encourage
competition was to eliminate the power of local governments to set rates for "basic" cable service. Congress
10
The local governments set the rates the cable companies could charge subscribers for "basic" services.
Some states and the FCC set the rates the companies could charge for other services, such as Home Box
Office. See H.R.Rep. No. 98-934, at 24 (1984); reprinted in 1984 U.S.C.C.A.N. at 4661.
6
realized that, in the short run at least, this would give incumbent cable operators the ability to charge their
subscribers monopoly prices. Prices would decrease in the long run, however, as local governments granted
additional franchises for a given territory. See Johnson Enters., Inc. v. FPL Group, Inc., 162 F.3d 1290, 1296
(11th Cir.1998). New cable companies would be able to enter the market and compete with the incumbent
cable company though, only if they could obtain utility pole attachments on the same terms as those given
to the incumbent.
In addition to these new demands for pole space, a host of new telecommunications carriers (such
as new long distance telephone carriers and wide area telephone service providers), which used wires to carry
their signals, began calling on the power and telephone companies to lease them space. They did so because
utility poles afforded the only feasible means for stringing their wires. Since the 1978 Act only regulated the
rents utilities could charge cable television companies, many utilities demanded monopoly rents from
telecommunications carriers. In an effort to alleviate this problem, Congress, in 1996, amended the 1978 Act
to give entities providing telecommunications and cable television service the right to "nondiscriminatory
access" to utility poles. See 47 U.S.C. § 224(f) (Supp. II 1996).11 In the event the parties could not agree to
the terms of the attachment, including the rent, the 1996 Act authorized the FCC to set "just and reasonable"
terms. See id. § 224(b)(1).
The 1996 Act also (1) redefined "utility," changing the definition from "any person whose rates or
charges are regulated by the Federal Government or a State" to "any person who is a local exchange carrier,
11
Section 224(f) provides:
(1) A utility shall provide a cable television system or any telecommunications carrier with
nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by
it.
(2) Notwithstanding paragraph (1), a utility providing electric service may deny a cable
television system or any telecommunications carrier access to its poles, ducts, conduits, or
rights-of-way, on a nondiscriminatory basis where there is insufficient capacity and for
reasons of safety, reliability, and generally applicable engineering purposes.
7
or a electric, gas, water, steam, or other public utility;"12 (2) redefined "pole attachment" to include
attachments by providers of telecommunications service;13 (3) directed the FCC to create a formula for
determining the attachment rent a utility could charge a telecommunications service provider;14 and (4)
instructed utilities on how to apportion the costs of "unusable" and "usable" space on their poles among
telecommunications service providers.15
On February 6, 1998, the FCC promulgated regulations implementing its authority under the 1996
Act. See Report and Order, 13 F.C.C.R. 6777. In the Report and Order, the FCC interpreted section 224(f)
of the 1996 Act to require that utility companies give Internet providers access to their poles because the
12
Both definitions of "utility" also require the ownership of poles, used at least in part, for wire
communication. Compare 47 U.S.C. § 224(a)(1) (1994), with 47 U.S.C. § 224(a)(1) (Supp. II 1996). Thus,
if an entity's poles do not have attachments that are transmitting "writing, signs, signals, pictures, and sounds
of all kinds by aid of wire, cable or other like connection," 47 U.S.C. § 153(51) (Supp. II 1996), the entity
is not a utility for purposes of the Act.
13
Compare 47 U.S.C. 224(a)(4) (1994), with 47 U.S.C. § 224(a)(4) (Supp. II 1996). The 1996 version of
the Act defined telecommunications, telecommunications carrier, and telecommunications service as follows:
"Telecommunications" is "the transmission, between or among points specified by the user, of information
of the user's choosing, without change in the form or content of the information as sent and received," 47
U.S.C. § 153(43) (Supp. II 1996); "telecommunications carrier" is any provider of telecommunications
services, 47 U.S.C. § 153(44) (Supp. II 1996); "telecommunications service" is the "offering of
telecommunications for a fee directly to the public, or to such classes of users as to be effectively available
directly to the public, regardless of facilities used," 47 U.S.C. § 153(46) (Supp. II 1996).
14
See 47 U.S.C. § 224(e)(1) (Supp. II 1996). For purposes of this opinion, the term "telecommunications
service providers" includes cable television companies that provide telecommunications services in addition
to cable services.
15
See 47 U.S.C. § 224(e)(2), (3) (Supp. II 1996). Section 224(e)(2) requires utilities to apportion the costs
of "unusable space" as follows:
A utility shall apportion the cost of providing space on a pole, duct, conduit, or right-of-way
other than the usable space among entities so that such apportionment equals two-thirds of
the costs of providing space other than the usable space that would be allocated to such entity
under an equal apportionment of such costs among all attaching entities.
Section 224(e)(3) requires utilities to apportion the costs of "usable space" as follows:
A utility shall apportion the costs of providing usable space among all entities according to
the percentage of usable space required for each entity.
8
Internet was a cable service. See id. at 6795-96. Further, it interpreted the language of section 224(a)(4),
which states that pole attachment meant any attachment, and section 224(d)(3), which provides that the FCC's
rate applied to any attachment by a telecommunications carrier, to mean that telephone and power companies
would have to accept pole attachments for wireless telephone equipment. See id. at 6798-99; see also infra
n.22. The agency also determined that the Act precludes utilities from receiving rent for overlashed wires
unless those wires significantly increase the burden on the pole. See id. at 6807. Finally, the FCC interpreted
the Act to prohibit utilities from receiving rent for dark fiber. See id. at 6810.
Having thus interpreted the scope of its authority, the FCC articulated formulas for determining the
attachment rents utilities may charge telecommunications service providers. See id. at 6820-30. Until
February 2001, the 1978 Act's maximum rent formula for cable providers applies to attachments by
telecommunications service providers. After that, the maximum rent will equal the sum of the "unusable"
and "usable" rate factors.16
In this amended rule, the FCC incorporated almost verbatim the complaint process articulated in its
1978 rule. See 47 C.F.R. §§ 1.1404, 1.1409 (1999). If the parties cannot agree to the rent or other terms of
an attachment (or if the utility denies access to its poles), the party contending that the rent or other terms are
unjust and unreasonable may petition the Commission to settle the matter. That party bears the burden of
establishing a prima facie case that the other party's position is unjust and unreasonable.17 If the complainant
fails to make out a prima facie case, the FCC must dismiss its complaint, in which case the rent or conditions
16
For poles, the "unusable space" factor =2/3 × (the percentage of the total pole space that is unusable) ×
(the attacher's share of the bare costs of maintaining the pole) × (carrying charges). The "usable space" factor
= (the percentage of total usable space occupied by the attacher) × (the percentage of total pole space that is
usable) × (net costs of the bare pole) × (carrying charges). For conduits, the "unusable space" factor =2/3 ×
(net linear costs of unusable space divided by the number of attachers) × (carrying charges). The "usable
space" factor for conduits =1/2 × (1 duct divided by the average number of ducts less adjustments for
maintenance ducts) × (linear cost of usable conduit space) × (carrying charges). 47 C.F.R. §§ 1.1417, 1.1418
(1999); Report and Order, 13 F.C.C.R. at 6820-33.
17
For example, if the party seeking attachment complains that the utility is demanding an unreasonable rent
(i.e., more than the maximum allowed under the FCC's formula), it bears the burden of proving that the rent
demanded is more than the fully allocated costs of the pole.
9
offered or demanded govern the transaction.18 If a prima facie case is established, the Commission
determines the maximum just and reasonable rent allowed under the rule's formula. Then, it decides the
specific just and reasonable rent the complainant should pay or receive for the attachment. This determination
involves reviewing items such as costs, rate of return on investment, the utility's filings before state or federal
regulatory agencies, and engineering studies, see 47 C.F.R. § 1.1404(g)(1)-(13) (1999), in addition to
considering the maximum rent the FCC's formula yields. The FCC's final rate order, like any of its final
orders, is then subject to judicial review under 47 U.S.C. § 402(a) (1994) (providing for judicial review of
FCC orders) and 28 U.S.C. §§ 2342, 2344 (1994) (providing for judicial review of FCC orders in a United
States Court of Appeals).
B.
In response to the FCC's Report and Order, power companies across the country filed petitions for
review in various courts of appeals. On March 23, 1998, Gulf Power Company, Alabama Power Company,
Georgia Power Company, and Southern Company Services filed a joint petition for review in the Eleventh
Circuit Court of Appeals. On April 28, 1998, Florida Power & Light Company also filed a petition for review
in the Eleventh Circuit. Subsequently, on May 8, 1998, Tampa Electric Company filed a petition for review
in the Eleventh Circuit, and Potomac Electric Company filed a petition for review in the D.C. Circuit. The
same day, Virginia Electric & Power Company, Duke Energy Company, and Carolina Power & Light
Company filed petitions for review in the Fourth Circuit; Duquesne Light Company and Delmarva Power
& Light Company filed in the Third Circuit; American Electric Power Service Corporation filed in the Sixth
Circuit; Commonwealth Edison Company filed in the Seventh Circuit; and Union Electric Company filed
in the Eighth Circuit. Finally, on June 17 and July 16, 1998, respectively, Houston Lighting & Power
Company and Public Service Electric & Gas Company filed motions to intervene in the first case filed in the
18
It is possible that the Commission's disposition of a complaint—whether a dismissal or an order setting
one or more terms—may turn out to be provisional if, after the decision issues, the putative attacher decides
to withdraw its request for an attachment. In this opinion, we assume for sake of discussion that the putative
attacher does not withdraw its request and abides by the Commission's decision.
10
Eleventh Circuit. Their motions were granted on August 4, 1998, the same day we granted the FCC's motion
to consolidate all of the petitions for review.
In their petitions for review, the Petitioners challenge (1) the implementation of the FCC's formula
for computing attachment rents as a taking without just compensation; (2) the implementation of the FCC's
overlashing interpretation as a taking without just compensation; (3) the FCC's authority to include wireless
communications equipment within the 1996 Act's regulated rate framework; (4) the FCC's authority to
include Internet service providers within the 1996 Act's regulated rate framework; and (5) the FCC's decision
not to count dark fibers as separate attachments. We discuss each of these challenges below, in parts III-VI.
On the day Gulf Power Company and its co-plaintiffs filed their joint petition for review, Gulf Power
and several other utilities19 brought an action in the United States District Court for the Northern District of
Florida seeking declaratory and injunctive relief. See Gulf Power Co. v. United States, 998 F.Supp. 1386(N.D.Fla.1998). Contending that the range of rental compensation the 1996 Act provided would in every case
operate to deny a utility just compensation, these plaintiffs sought a declaration that the 1996 Act was facially
invalid under the Fifth Amendment Takings Clause, and a permanent injunction prohibiting the Commission
from enforcing the 1996 Act. See id. at 1389. The plaintiffs also claimed that allowing the FCC to determine
just compensation violated the Separation of Powers doctrine. The district court granted the United States'
motion for summary judgment. It concluded that, although the 1996 Act authorized a taking of the plaintiffs'
property, it did not deny the plaintiffs just compensation. Rather, it provided a procedure—a proceeding
before the Commission—for determining just compensation which did not violate the Separation of Powers
doctrine because the Commission's decision was subject to judicial review. See id. at 1397-98.
The plaintiff utilities appealed. A panel of this court upheld the district court's conclusion that the
1996 Act authorized a taking of the plaintiffs' property, but declined to review the court's ruling on just
compensation. That issue was not ripe for review because the plaintiffs had not shown that the 1996 Act
19
The other utilities were Alabama Power Company, Georgia Power Company, Duke Power Company,
Mississippi Power Company, Ohio Edison Company, and Florida Power Corporation.
11
would operate to deny them just compensation in every case. See Gulf Power Co. v. United States, 187 F.3d
1324, 1338 (11th Cir.1999) (Gulf Power I ). Finally, the panel affirmed the district court's holding that
allowing the FCC to determine just compensation in the first instance did not violate the Separation of Powers
doctrine. Id. at 1332-37.
II.
In their petitions for review, the Petitioners do not present the same challenges the plaintiffs made
in Gulf Power I. Instead of attacking the facial validity of the Act under the Fifth Amendment Takings Clause
and the Separation of Powers doctrine, the Petitioners question the facial validity of several aspects of the
FCC's Report and Order.
We review constitutional challenges to agency regulations de novo. See Rural Tel. Coalition v. FCC,
838 F.2d 1307, 1313 (D.C.Cir.1988); see also 5 U.S.C. § 706(2)(B) (1994). We use the two-step Chevron
analysis to review agency interpretations of a statute. See Chevron U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Legal Envtl. Assistance Found., Inc. v. EPA,
118 F.3d 1467, 1473 (11th Cir.1997). Under Chevron step one, we determine whether Congress has spoken
unambiguously to the question at issue. If it has, our inquiry ends; we give effect to Congress' intent. See
Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781. Under Chevron step two, if we determine that Congress'
intent is ambiguous, we defer to a reasonable agency interpretation of Congress' intent. See id. at 843, 104
S.Ct. at 2781-82. In resolving whether an ambiguity exists, we use normal tools of statutory construction,
without affording agency interpretations any deference. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107
S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987); National Mining Ass'n v. Secretary of Labor, 153 F.3d 1264, 1267
(11th Cir.1998).
III.
The Petitioners' primary challenge to the FCC's Report and Order is that the rate formula it
establishes cannot pass muster under the Fifth Amendment Takings Clause. The Petitioners' challenge
12
presents two separate questions: will the Commission's formula, when implemented, effect a taking of part
of utility poles, and if so, will the formula operate to deny the utilities just compensation in every case.
The Gulf Power I panel decided that the 1996 Act authorized a taking of utilities property, but
concluded that the issue of whether the statute would operate to deny just compensation in every case was
not ripe for review. See Gulf Power I, 187 F.3d at 1338; see also Abbott Lab. v. Gardner, 387 U.S. 136, 148-
49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The panel's resolution of the takings issue constitutes
binding precedent. See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997). We therefore begin with the
premise that the 1996 Act authorizes the Commission, when faced with a complaint filed by an entity
providing cable television or telecommunications services, to take a utility's property. Thus, our answer to
the first question the Petitioners pose is yes: when the Commission rules on a complaint, a taking may result.
The second question the Petitioners present is whether the Commission's formula will operate to deny
utilities just compensation in every case. The Gulf Power I panel held that the just compensation question,
when raised in a facial challenge to the 1996 Act, was not ripe unless the plaintiffs could show that just
compensation would be denied in all cases. The compensation limits—the maximum and minimum
rents—that the Commission's rule prescribes mirror the compensation limits prescribed by the 1996 Act.
Compare 47 U.S.C. § 224(b), (d)(1), with 47 C.F.R. § 1.1409. Under the 1996 Act, the lowest rent that may
be considered just and reasonable is an amount equal to the incremental cost of adding the new attachment
to the utility's pole; the highest rent that may be considered just and reasonable is an amount equal to the
fully allocated costs of the pole. See 47 U.S.C. § 224(b), (d)(1). A rent that is higher or lower than these
statutory limits would be unjust and unreasonable. Because the outer boundaries of the FCC's formula are
identical to those of the 1996 Act, Gulf Power I 's ripeness standard binds us. Thus, we inquire whether the
Petitioners have shown that the Commission's formula will always deny utilities just compensation.
In this case, we are not called upon to review an FCC determination that a utility provide pole space
at a rent that does not amount to the just compensation mandated by the Takings Clause. All that is before
13
us is a facial attack on the Commission's formula and the Petitioners' allegation that factors the Commission
took into account in fashioning the formula could never provide just compensation. This is essentially the
same argument the utilities made to the Gulf Power I panel. The panel's response was that the utilities failed
to establish that " 'no set of circumstances exists under which the Act would be valid.' " Gulf Power I, 187
F.3d at 1336 (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697(1987)). Although the Petitioners posit circumstances in which the FCC's formula will deny just
compensation, we are not confident, given the record at hand, that the formula will deny just compensation
in all cases. The Petitioners' facial challenge to the formula is therefore unripe, and we do not address it. Gulf
Power I, 187 F.3d at 1338; Cargill, 120 F.3d at 1386.20
IV.
The Petitioners challenge the FCC's decision to include wireless carriers within the
"nondiscriminatory access" provision of section 224(f), claiming that the FCC has no statutory authority to
regulate wireless carriers under the 1996 Act.21 We agree.
The FCC contends that Congress' frequent use of the word "any" in the 1996 Act indicates an intent
to have the Commission broadly regulate pole attachments.22 As long as an attachment is made by a cable
20
For the same reasons, the issue of whether mandatory overlashing effects a taking without just
compensation is also not ripe for review. Utilities, under the FCC's rule, are required to allow overlashing
of cables for no additional compensation unless the additional cables "significantly increase the burden on
the pole." Report and Order, 13 F.C.C.R. at 6807. This regulatory exception essentially reflects the
exception, sometimes called the "engineering and safety exception," present in the Act. See 47 U.S.C. §
224(f)(2). That exception did not prevent the Gulf Power I panel from finding that the 1996 Act authorized
a taking, and neither does the regulatory exception prevent us from concluding that the FCC's overlashing
rule authorizes a taking. Just compensation was too abstract to determine for the original statutory taking,
and thus is also too abstract to determine for the taking authorized by the FCC's overlashing rule. See Gulf
Power I, 187 F.3d at 1338; see also Abbott Lab., 387 U.S. at 148-49, 87 S.Ct. at 1515.
21
As stated in part II supra, questions of pure statutory construction fall within a Chevron step one
analysis. We, therefore, owe no deference to an agency's construction of a statute. See Cardoza-Fonseca,
480 U.S. at 446, 107 S.Ct. at 1221; National Mining Ass'n, 153 F.3d at 1267.
22
Specifically, the FCC cites Congress' use of the word "any" in the following two provisions:
The term "pole attachment" means any attachment by a cable television system or provider
14
television company or a telecommunications service provider, the FCC contends, the attachment may be
regulated under section 224(d) or (e), no matter what kind of attachment it is. This position is contrary to the
Commission's narrow authority to regulate power companies. The FCC's organic statute does not give it
authority to regulate power utilities. See 47 U.S.C. § 151 (1994) (creating the FCC to regulate interstate and
foreign commerce in radio and wire communication). Congress placed power companies within the agency's
regulatory authority for pole attachment purposes only. See 47 U.S.C. § 224(a)(1).
Section 224(a)(4) defines a pole attachment as "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." A utility, according to section 224(a)(1) is "any person ... who owns or controls poles, ducts,
conduits, or rights-of-way used, in whole or in part, for any wire communications."23 Read in combination,
these two provisions give the FCC authority to regulate attachments to poles used, at least in part, for wire
communications, and by negative implication does not give the FCC authority over attachments to poles for
wireless communications.24
of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled
by a utility.
47 U.S.C. § 224(a)(4) (emphasis added).
This subsection shall apply to the rate for any pole attachment used by a cable television
system solely to provide cable service. Until the effective date of the regulations required
under subsection (e) of this section, this subsection shall also apply to the rate for any pole
attachment used by a cable system or any telecommunications carrier (to the extent such
carrier is not a party to a pole attachment agreement) to provide any telecommunications
service.
47 U.S.C. § 224(d)(3) (emphasis added).
23
The term "wire communications" is defined as "the transmission of writing, signs, signals, pictures, and
sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception
of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things,
the receipt, forwarding, and delivery of communications) incidental to such transmission." 47 U.S.C. §
153(51) (emphasis added).
24
The fact that power companies that do not use their poles to transmit wire communications are not
covered by the Act and the FCC's implementing regulations, see supra nn.12, 23, further supports this narrow
15
That wires are integral to the FCC's authority is supported by the legislative history of the 1978 Act.25
Congress' reason for passing it was that the Commission did not believe it had authority to regulate power
companies since pole attachment arrangements "d[id] not constitute communication by wire or radio." S.Rep.
No.95-580, at 14, reprinted in 1978 U.S.C.C.A.N. at 122 (internal quotation marks omitted). The FCC
reasoned that:
The fact that cable operators ha[d] found in-place facilities convenient or even necessary for their
businesses [wa]s not sufficient basis for finding that the leasing of those facilities [wa]s wire or radio
communications. If such were the case, we might be called upon to regulate access and charges for
use of public and private roads and right of ways essential for the laying of wire, or even access and
rents for antenna sites.
Id. Before 1978, the FCC's regulatory authority did not extend to power companies because power companies
did not use their poles primarily for communication by wire or radio. This hindered the growth of the cable
television market. The FCC could regulate what telephone companies charged to attach, but could not
regulate what the power companies charged to attach. Because telephone and power poles generally did not
run side-by-side, the cable companies at times were forced to attach to power company poles instead of
telephone poles, and to pay monopoly rents. To prevent the power companies from taking unfair advantage
of their bottleneck facilities in this manner, Congress brought them under the FCC's regulatory umbrella,
reading of the FCC's authority. The dissent takes issue with this reading of section 224, stating that we make
more of the wire-based definition of utility than Congress intended. The dissent's reasoning is contrary to
its own suggestion that we follow the straightforward statutory language of section 224. The language of
section 224 plainly says that attachments may be made to poles used for wire communications; it says
nothing about attachments for wireless communications.
25
The statutory language of section 224 itself prohibits the FCC from regulating pole attachments for
wireless communications; thus, we may end our review with that language. An understanding of the
communications industry and Congress' attempts at regulating it helps one understand why Congress wrote
section 224 to prohibit the FCC from regulating wireless communications. To provide this understanding,
we use normal tools of statutory construction and eliminate any hint of ambiguity in the statutory language.
See Cardoza-Fonseca, 480 U.S. at 432 n. 12, 107 S.Ct. at 1213 n. 12 ("As we have explained, the plain
language of this statute appears to settle the question before us. Therefore, we look to the legislative history
to determine only whether there is 'clearly expressed legislative intention' contrary to that language, which
would require us to question the strong presumption that Congress expresses its intent through the language
it chooses.") (quoting United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483(1986)); see also infra n.39 (Carnes, J., dissenting).
16
permitting "[f]ederal involvement in pole attachments matters ... where space on a utility pole ha[d] been
designated and [wa]s actually being used for communications services by wire or cable." Id. at 15, reprinted
in 1978 U.S.C.C.A.N. at 123 (emphasis added). The reason Congress gave this pole attachment authority to
the FCC was that the Commission already regulated all other aspects of the cable industry and cable
companies were the only entities seeking to attach to poles in 1978.
In 1996, when Congress amended the 1978 Act, it once again expanded the FCC's jurisdiction; this
time to include attachments by telecommunications service providers. Nothing in the legislative history
indicates that the original purpose behind regulating utility poles—to prevent the telephone and power
companies from charging monopoly rents to connect to their bottleneck26 facilities—changed. Rather, the
legislative history suggests the same thing the language alteration suggests: Congress wanted to allow
telecommunications service providers, like the cable television companies before them, to attach to the
utilities' bottleneck facilities without having to pay monopoly rents. See H. Rep. No. 104-204, at 92 (1996),
reprinted in 1996 U.S.C.C.A.N. 10, 58.
The Petitioners' poles are not bottleneck facilities for wireless carriers. Wireless attachments to poles
"include an antenna or antenna clusters, a communications cabinet at the base of the pole, coaxial cables
connecting antennas to the cabinet, concrete pads to support the cabinet, ground wires and trenching, and
wires for telephone and electric service." Report and Order, 13 F.C.C.R. at 6799. Most of this equipment
can be placed on any tall building, and the whole set-up requires more physical space then a wireline system.
Further, wireless systems operate in a completely different way than do wireline systems. Wireline networks
transmit through linear networks of cables strung between poles. Wireless networks, on the other hand,
transmit through a series of concentric circle emissions that allow the network to continue working if one
antenna malfunctions. Indeed, it is highly questionable whether there are any bottleneck facilities for wireless
systems. What is beyond question is that utility poles are not bottleneck facilities for wireless systems.
26
See AT&T Corp. v. Iowa Util. Bd., 525 U.S. 366, 388, 119 S.Ct. 721, 734, 142 L.Ed.2d 835 (1999)
(defining bottleneck facilities as something akin to the essential facilities of antitrust law).
17
Because they are not, and because the 1996 Act deals with wire and cable attachments to bottleneck facilities,
the act does not provide the FCC with authority to regulate wireless carriers.27
Although Congress did not give the FCC authority to regulate the placement of wireless carriers'
equipment under section 224 (or any other section) of the Telecommunications Act of 1996, that statute did
address, in part, such regulation by state and local governments. Section 33228 states that "[t]he regulation
of the placement, construction, and modification of personal wireless services facilities by any State or local
government or instrumentality thereof—shall not unreasonably discriminate among providers of functionally
equivalent services; and shall not prohibit or have the effect of prohibiting the provision of personal wireless
service." Pub.L. No. 104-104, § 704(B)(i)(I),(II), 110 Stat. 149 (1996) (codified at 47 U.S.C. §
332(7)(B)(i)(I), (II)). The section goes on to require a state to act on requests to site wireless equipment
within a reasonable time, to require a state to put its reasons for denying any such request in writing, and to
limit the reasons a state can assert for determining where wireless carriers can locate their equipment. See
id. § 704(B)(ii)-(iv) (codified at 47 U.S.C. § 332(7)(B)(ii)-(iv)). The specificity with which Congress
addressed the siting of wireless equipment in section 332 indicates that it did not intend that section 224
provide the FCC authority to regulate the placement of wireless carriers' equipment.
V.
Next, Petitioners challenge the FCC's statutory authority to regulate attachments for Internet service
under the 1996 Act. As with wireless carriers, we agree that the FCC has no authority under that act to
regulate Internet service providers. The 1996 Act allows the Commission to regulate the rates for cable
service and telecommunications service; Internet service is neither.
27
The FCC seemed to recognize that this might be the case when it stated that, "[t]here are potential
difficulties in applying the Commission's rules to wireless pole attachments." Report and Order, 13 F.C.C.R.
at 6799.
28
The wireless communications section of the Telecommunications Act of 1996 follows the pole
attachment section; as codified, however, the two sections do not follow one another. Compare Pub.L. No.
104-104, §§ 703, 704, 110 Stat. 149 (1996), with 47 U.S.C. §§ 224, 332 (Supp. II 1996).
18
The FCC argues that Internet service provided by a cable television system is either "solely cable
services" or is subject to regulation under section 224(b)(1)'s mandate to "ensure that the rates, terms, and
conditions [for pole attachments] are just and reasonable." Report and Order, 13 F.C.C.R. at 6795-96
(internal quotation marks omitted). To accept this argument requires us to disregard the unambiguous
language of the 1996 Act, which we cannot do. See Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117
S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). The 1996 Act calls for the Commission to establish two rates for
pole attachments.29 One, described in section 224(d), applies to "any pole attachment used by a cable
television system solely to provide cable service." 47 U.S.C. § 224(d)(3). The second rate applies to "charges
for pole attachments used by telecommunications carriers to provide telecommunications services." 47
U.S.C. § 224(e)(1). For the FCC to be able to regulate the rent for an attachment that provides Internet
service then, Internet service must qualify as either a cable service or a telecommunications service.
Cable service, defined in section 522, is "the one-way transmission to subscribers of (i) video
programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service." 47 U.S.C. § 522(6)(A), (B)
(1994 & Supp. II 1996).30 The only difference between this definition of "cable service" and the definition
included in the 1978 Act is the addition of the words "or use." According to the House Report accompanying
the 1996 amendments, the inclusion of the words "or use" was meant to "reflect[ ] the evolution of video
29
The dissent contends that our reading of section 224 ignores subsection (b)(1)'s mandate that the FCC
provide just and reasonable rates for pole attachments. To the contrary, our reading gives effect to all parts
of section 224 while the dissent's reading ignores the fact that subsections (d) and (e) narrow (b)(1)'s general
mandate to set just and reasonable rates. The straightforward language of subsections (d) and (e) directs the
FCC to establish two specific just and reasonable rates, one for cable television systems providing solely
cable service and one for telecommunications carriers providing telecommunications service; no other rates
are authorized.
30
Although section 522 states that its definitions apply only to that subchapter, we give words a consistent
meaning throughout the statute unless otherwise instructed by Congress. See Richards v. United States, 369
U.S. 1, 11, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962) ("We believe it fundamental that a section of a statute
should not be read in isolation from the context of the whole Act.") (footnotes and internal quotations
omitted); Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir.1994).
19
programming toward interactive services." H. Rep. No. 104-204, at 97, reprinted in 1996 U.S.C.C.A.N. at
64. This is the only sentence in the legislative history that attempts to explain Congress' change to the
definition of "cable service." Although what it means to reflect an evolution of video programming toward
interactive service is not exactly clear, it is clear from Congress' lack of discussion of this change that it was
minor in both language and intent. If Congress by the addition of these two words meant to expand the scope
of the "cable service" definition from its traditional video base to include all interactive services, video and
non-video, it would have said so. Without any substantive comment, we will not read this minor change to
effectuate a major statutory shift. See Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 318,
105 S.Ct. 3180, 3187, 87 L.Ed.2d 220 (1985) (stating that without substantive comment "it is generally held
that a change during codification is not intended to alter the statute's scope") (citing Muniz v. Hoffman, 422
U.S. 454, 467-74, 95 S.Ct. 2178, 2185-89, 45 L.Ed.2d 319 (1975)). How then did the addition of the words
"or use" alter the definition of "cable service"? The statute's plain language and Congress' one sentence
explanation suggest that Congress expanded the definition to include services that cable television companies
offer to their customers to allow them to interact with traditional video programming.31
Although the statute includes interaction with other programming—in addition to video
programming—within the definition of "cable service," we cannot read the language "other programming"
broadly to include Internet services. "Other programming" has been part of the definition of "cable service"
since 1978, when the Internet was only a tool for researchers and the military, not a commodity that would
require regulation. When Congress used this language then, it could not have intended it to cover Internet
services provided by cable companies. Again, we will not radically expand the scope of the definition of
31
Video programming means "programming provided by, or generally considered comparable to
programming provided by, a television broadcast station." 47 U.S.C. § 522(20).
20
"cable service" from a video base to an all-interactive-services base without some substantive indication from
Congress that this is indeed its intent. See Walters, 473 U.S. at 318, 105 S.Ct. at 3187.32
Furthermore, as an aside, we note that the FCC, itself, has defined the Internet as an information
service, not as a cable service. See In Re Fed.-State Joint Bd. on Universal Serv., 13 F.C.C.R. 11501 ¶ 66
("Internet service providers themselves provide information services.... "). Thus, the FCC lacks statutory
authority to regulate the Internet under the 1996 Act based on the theory that Internet service is a cable
service.
The only remaining basis for the Commission's authority to regulate the Internet under the 1996 Act
is to treat the Internet as a telecommunications service. See 47 U.S.C. § 224(d)(3), (e) (directing the
Commission to develop a rate for telecommunications carriers providing telecommunications service). The
FCC, however, did not raise that argument before us. Nor could it have because the FCC has specifically said
that the Internet is not a telecommunications service. See Report and Order, 13 F.C.C.R. at 6795 ("The
Universal Service Order concluded that Internet service is not the provision of a telecommunications service
under the 1996 Act."); In Re Fed.-State Joint Bd. on Universal Serv., 12 F.C.C.R. 87 ¶ 69 (1996) ("Internet
32
The Commission urges us to adopt the D.C. Circuit's reasoning in Texas Utilities Electric Co. v. FCC,
997 F.2d 925 (D.C.Cir.1993), in determining whether pole attachments used by a cable television company
to provide Internet service are entitled to a regulated rent under the 1996 Act. We decline to do so. The D.C.
Circuit decided Texas Utilities Electric Co. before the 1996 amendments were enacted. Prior to 1996, section
224 instructed the FCC to set a reasonable rent for "any attachment by a cable television system." 47 U.S.C.
§ 224(a)(4), (d)(1) (1994). It did not specify the particular services of a cable television system that were
entitled to a regulated rent. Because Congress, in passing the 1978 Act, did not specify whether it "place[d]
greater emphasis on the type of service to be distributed over the attachment or the type of entity doing the
attaching," Texas Utils. Elec. Co., 997 F.2d at 930, the court found the statute ambiguous. The court,
therefore, deferred to the FCC's interpretation that co-mingled services were covered by section 224. Today
we are faced with an entirely different situation from that faced by the D.C. Circuit in Texas Utilities Electric
Co. because Congress, in 1996, amended the Act to eliminate the ambiguity at issue in that case. The new
section 224(d)(3) states that "solely cable services" receive regulated rents. (Telecommunications services,
which also receive regulated rents are discussed in the text infra.) Because we now know that the statute
emphasizes the type of service over the type of entity acquiring the attachment, we have no need to follow
the reasoning of Texas Utilities Electric Co. Indeed, to follow that reasoning would be to disregard our duty
under Chevron to give effect to Congress' unambiguous intent. Chevron, 467 U.S. at 842-43, 104 S.Ct. at
2781.
21
service does not meet the statutory definition of a 'telecommunications service.' ").33 Accordingly, there is
no statutory basis for the FCC to regulate the Internet as a telecommunications service under the 1996 Act.
In sum, Congress, in the 1996 Act, authorized the FCC to develop rent formulas for attachments
providing cable and telecommunications services. Internet service does not meet the definition of either a
cable service or a telecommunications service. Therefore, the 1996 Act does not authorize the FCC to
regulate pole attachments for Internet service.
VI.
The Petitioners' final challenge is to the FCC's statutory authority to regulate the rents utilities charge
for dark fiber attachments. Dark fiber, which exists within a fiber optic cable, "consists of ... bare capacity
and does not involve any of the electronics necessary to transmit or receive signals over that capacity."
Report and Order, 13 F.C.C.R. at 6810. The advantage of stringing cables with lit and dark fiber is that dark
fiber provides excess distribution and transmittal capacity for a cable or telecommunications company to use
as its service network expands. Dark fiber also may be leased to a third party. Because dark fiber is bare
capacity, it technically is neither a telecommunications service nor a cable service. In fact, it is not a service
at all; it is simply an inactive fiber.
The 1996 Act authorizes the FCC to regulate the pole attachments of cable television and
telecommunications companies that provide cable and telecommunications services. See 47 U.S.C. § 224;
supra part V. The 1996 Act says nothing about regulating bare capacity. But, these bare capacity fibers do
not generally exist on their own. They are usually located within cables that also contain fibers providing
cable or telecommunications services, i.e., lit fibers the FCC clearly has the authority to regulate. Thus,
unlike Internet service or wireless carriers, the statute's silence does not resolve the issue of whether the
33
The FCC has given the following examples of telecommunications services: cellular telephone and
paging services, mobile radio services; operator services, PCS (personal communications services); access
to interexchange service; special access; wide area telephone service (WATS); toll-free service; 900
service; MTS; private line; telex; telegraph; video services; satellite services; and resale services. In re
Fed.-State Joint Bd. on Universal Serv., 12 F.C.C.R. 8776 ¶ 780 (1997). Even if this list is not exhaustive,
all of these examples are materially different from the Internet.
22
Commission may regulate dark fiber. Both Internet service and wireless carriers are similar to items the
statute covers. The statute defines the kinds of attachers it covers, and wireless carriers do not fall within that
definition. Similarly, the statute defines the types of wire services it covers, and Internet services are not one
of those services. We can, therefore, say, based on the 1996 Act alone, that the FCC lacks the authority to
regulate wireless carriers and the provision of Internet services. Dark fiber, however, is not a service (nor,
of course, is it a type of attacher). Thus, the fact that it falls outside the definitions of "cable service" and
"telecommunications service" tells us nothing about Congress' intent to regulate dark fiber. Congress did say
that it did not intend to have an attacher pay twice for a single attachment, see H.R.Rep. No. 104-204, at 92,
reprinted in 1996 U.S.C.C.A.N. at 59, but the legislative history does not indicate whether dark fiber and its
host were to be considered a single attachment. Congress' intent is ambiguous; therefore, we proceed to step
two of the Chevron analytical framework and consider whether the FCC reasonably interpreted Congress'
silence on dark fiber. See Chevron, 467 U.S. at 843, 104 S.Ct. at 2781-82.34
The FCC decided that dark fiber is not a separate attaching entity from its host attachment. See
Report and Order, 13 F.C.C.R. at 6811.35 According to the FCC, dark fibers place no more burden on a pole
than do their host attachments. See id. This makes sense since dark fiber, by definition, is merely bare
capacity and is included within its host attachment at the time that cable is attached to the pole. Further, we
presume that in determining the rent for the host attachment, the utility and the FCC will account for the dark
fibers contained within the attaching host. By accounting for the dark fibers in the rent determination for the
34
Our conclusion that Congress' intent is ambiguous is consistent with our conclusion that section 224 does
not authorize the FCC to regulate wireless carriers or the provision of Internet services because, as we state
in the text, wireless carriers and Internet service are similar in kind to the attachers and services the 1996 Act
discusses. Dark fiber, however, is a different bird altogether. Neither the statute nor the legislative history
discusses anything similar to dark fiber. Therefore, we cannot even begin to discern, let alone declare
unambiguous, Congress' intent regarding dark fiber.
35
Section 224(e)(2) directs a utility to "apportion the cost of providing space on a pole, duct, conduit, or
right-of-way other than the usable space among entities," and section 224(e)(3) directs a utility to "apportion
the cost of providing usable space among all entities." The FCC determined that dark fiber did not constitute
a separate entity from its host attacher for purposes of sections 224(e)(2) and (3).
23
host cable, the Commission ensures that the utility receives just compensation for any burden the dark fiber
may cause the pole at the time the host attaches. Hence, once the utility has been compensated, there is no
reason to treat dark fiber as a separate attaching entity, and the FCC's decision not to do so is reasonable.36
VII.
For the foregoing reasons, we hold that the nondiscriminatory access provision of the 1996 Act
authorizes a taking of a portion of the Petitioners' poles, which occurs when the FCC issues a rent
determination order as to a particular pole or set of poles. Whether the rent formula developed by the FCC,
including its decision not to require additional compensation for overlashed wires, provides just compensation
is not ripe for review because it is not presented in a sufficiently concrete form for adjudication. Further, we
hold that the FCC lacks the authority to regulate wireless carriers and the provision of Internet service under
the 1996 Act. Finally, we hold that the FCC's decision not to count leased dark fiber as an additional attaching
entity is reasonable.
SO ORDERED.
CARNES, Circuit Judge, concurring in part and dissenting in part:
On review in these cases is In the Matter of Implementation of Section 703(e) of the
Telecommunications Act of 1996, 13 F.C.C.R. 6777 (1998) ("Order "), the order of the Federal
Communications Commission which implements the amendments to the Pole Attachment Act of 1978, 47
U.S.C. § 224, contained in the Telecommunications Act of 1996. Because I believe that the Pole Attachment
Act of 1978, as amended, extends regulated rates to all pole attachments, including those used for wireless
telecommunications service and Internet service, I dissent from the parts of the Court's decision reaching a
contrary conclusion.
36
Our ruling on dark fiber is narrow; holding only that it was reasonable for the FCC to consider pure dark
fiber and its host as one attaching entity. We are not presented with a factual scenario involving dark fiber
that becomes lit, thus we do not address the status of such a fiber. Nor do we address dark fiber located
within a cable whose attachment the FCC lacks authority to regulate under section 224(f).
24
I do agree with the majority opinion's conclusions regarding the petitioners' facial attack on the rate
formula prescribed in the Order. As this Court held in Gulf Power Co. et al. v. United States, 187 F.3d 1324(11th Cir.1999) ("Gulf Power I "), section 224(f), the statutory provision requiring utilities to accept pole
attachments, effects a per se taking of property under the Fifth Amendment for which just compensation is
required.1 Id. at 1328-31. But the petitioners have failed to show that the Order 's rate formula will deny just
compensation in every case. Consequently, their facial challenge to the formula is unripe and, as the majority
opinion concludes, it should not be considered by this Court.2 Id.I disagree, however, with the majority opinion's holdings regarding wireless telecommunications
service and Internet service. It concludes that the FCC has no authority to regulate either wireless
telecommunications carriers or Internet service providers, but the plain language of the statute mandates the
opposite conclusion.3
1
Section 224(f) reads as follows:
(1) A utility shall provide a cable television system or any telecommunications carrier with
nondiscriminatory access to any pole, conduit, or right-of-way owned or controlled by it.
(2) Notwithstanding paragraph (1), a utility providing electric service may deny a cable
television system or any telecommunications carrier access to its poles, ducts, conduits, or
rights-of-way, on a non-discriminatory basis where there is insufficient capacity and for
reasons of safety, reliability and generally applicable engineering purposes.
2
Likewise, I agree with the majority opinion's conclusion regarding the petitioners' argument that the rate
formula denies just compensation when wires are overlashed because no additional compensation is awarded.
It is possible that in some cases the rate formula will provide just compensation for both the original
attachment and the overlashed cables without additional compensation. Again, the petitioners have failed to
show that the rate formula will deny just compensation in every case. Thus, their challenge is unripe.
3
As noted in the majority opinion, we apply the two-step Chevron analysis to agency interpretations of
a statute. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984). "First, the court is to determine if the intent of Congress is clear; if so, that is the end
of the matter. On the other hand, if Congress has not spoken directly to the precise question at issue, a second
step of review comes into play, and the court must determine whether the agency's answer to the question
Congress left open reflects a permissible construction of the statute." Jaramillo v. INS, 1 F.3d 1149, 1152
(11th Cir.1993) (en banc). We use the normal tools of statutory construction to judge whether Congress'
intent is clear. See INS v. Cardoza Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987)
(quoting Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2782 n. 9).
25
Section 224(b)(1) provides that the FCC "shall regulate the rates, terms, and conditions for pole
attachments to provide that such rates, terms, and conditions are just and reasonable." The term "pole
attachment" is defined in section 224(a)(4) as "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."
(emphasis added). As this Court has stated, more than once, "the adjective 'any' is not ambiguous; it has a
well-established meaning." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir.1997); accord Lyes
v. City of Riviera Beach, Florida, 166 F.3d 1332, 1337 (11th Cir.1999) (en banc). "Read naturally, the word
'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.' " United States v.
Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) (citations omitted) (as quoted in
Merritt, 120 F.3d at 1186). Applying that definition to sections 224(a)(4) and (b)(1), the FCC has the
authority to regulate all attachments, i.e., attachments "of whatever kind," id., by a cable television system
or provider of telecommunications service to a pole, duct, conduct, or right-of-way owned or controlled by
a utility. Obviously, all attachments includes those attachments used to provide wireless and Internet
services.
The majority opinion does not attempt to justify its conclusions regarding wireless service with the
language of the statute, except to say that there is a "negative implication" created by the statutory definition
of a pole attachment coupled with the definition of a utility.4 But the negative implication, if there is one at
all, is not nearly as strong as the majority seems to think. The statutory definition of utility serves merely to
exempt from mandatory access any utility that does not make its poles available for wire communications at
all. If a utility does not make its poles available for wire communications, it does not have to make its poles
available for wireless communications. However, once a utility makes its poles available, even "in part," for
4
Pole attachment is defined in section 224(a)(4) as "any attachment ... to a pole, duct, conduit, or
right-of-way owned or controlled by a utility." Utility is defined in section 224(a)(1) as "any person ... who
owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire
communications."
26
wire communications, it is subject to mandatory access for all pole attachments. Nothing about the definition
of utility negates the FCC's mandate to regulate rates for all pole attachments.
Notwithstanding the straightforward statutory language, the majority opinion turns to legislative
history to justify its conclusion about wireless communications. But the Supreme Court, as well as this Court,
has repeatedly held when the meaning of a statute is clear from its plain language, it is unnecessary to look
to legislative history. See Gonzales, 117 S.Ct. at 1035 ("Given the straightforward statutory command, there
is no reason to resort to legislative history."); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655,
662, 126 L.Ed.2d 615 (1994) ("we do not resort to legislative history to cloud a statutory text that is clear.");
United States v. Paradies, 98 F.3d 1266, 1288 (11th Cir.1996) ("Because the language in the statute is clear,
it would be improper to look to the legislative history for clarification."). Because the statutory language at
issue is unambiguous, resort to legislative history in order to undermine it is unnecessary and improper.
With respect to Internet service, the majority opinion concludes that the FCC has no authority to
regulate it because Internet service is neither a cable service nor a telecommunications service, and is thus
not covered by the rate formulas described in section 224(d) for "solely" cable services and in section 224(e)
for telecommunications services. But the majority opinion fails to address the section 224(b)(1) mandate that
the FCC "regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and
conditions are just and reasonable...." Because pole attachment is defined as "any attachment," and because
of the unambiguous definition of "any," section 224(b)(1) requires the FCC to ensure just and reasonable rates
for all pole attachments, including those used to provide Internet service.
Finally, I agree with the majority opinion's conclusion that the FCC has the authority to regulate dark
fiber and that the FCC's decision not to treat dark fiber as a separate attaching entity is reasonable. For
reasons I have already discussed, dark fiber is within the definition of pole attachment, and it is therefore
within the FCC's regulatory authority. The FCC's decision to treat dark fiber and its host attachment as one
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attaching entity is reasonable, because, as the majority opinion notes, "dark fiber, by definition, is merely bare
capacity and is included within its host attachment at the time that cable is attached to the pole."
The problem is how the majority opinion reaches the conclusion that the FCC is authorized to
regulate dark fiber. It does so by concluding that because dark fiber is neither a cable service nor a
telecommunications service, the statute is ambiguous. But the same majority opinion also concludes that
because Internet service is neither a cable service nor a telecommunications service, the statute is
unambiguous and Internet service is outside the FCC's regulatory authority. The majority cannot have it both
ways—either the statute unambiguously gives the FCC the authority to regulate only cable and
telecommunications services, or the statute is ambiguous about whether the FCC has authority to regulate
more than cable and telecommunications services. My view is consistent: The statute unambiguously gives
the FCC authority to regulate any and all pole attachments. The majority opinion's view is not consistent.
Because I believe that the statute unambiguously gives the FCC regulatory authority over wireless
telecommunications service and Internet service, I dissent from those parts of the majority opinion holding
to the contrary.
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