Gulf Power Co. v. Federal Communications Commission

CARNES, Before TJOFLAT Corp., GTE Serv. Raposa, Francis John GARWOOD*,Senior Judges, Circuit TX, GTE Service Irvin, Intervenor Judge. Circuit Corp.

* Garwood, designation. U.S. Cir- Senior Will L. Honorable Circuit, sitting Judge the Fifth cuit

TJOFLAT, ed, Judge: Circuit operate the formula will to take their property just compensation, without in vio- Act, The 1996 Pole Attachment lation of the Fifth Amendment. We de- (the (Supp.II.1996) § 224 U.S.C. “1996 claim, cline takings to reach this because it Act”), providers of gives cable and tele- ripe. is not challenge The Petitioners communications also right services the to at- poles tach wires to the the FCC’s other power rulings. As to those rul- telephone companies. If power ings, unripe we find challenge their telephone companies accept will not overlashing provision rent providers pay, offer to the Fed- Order; we hold that the FCC lacks author- (the eral Communications Commission ity placement of wireless “Commission”) “FCC” or sets the rent. equipment utility poles and attachments In Implementation In re Section service; for Internet and that its decision 703(e) the Telecommunications Act regarding dark fiber constitutes reason- 13 F.C.C.R. 1998 WL 46987 interpretation able of the 1996 Act. (1998) (codified §§ at 47 C.F.R. 1.1401- (“Re- (1999)47CFRS1.1418CFRLQ) 1.1418 I. Order”), port and promulgated a formula for computing that rent. The A. (in Report FCC also ruled and Or- From its inception, the cable television der) that the 1996 Act precluded utilities industry has attached its cables to the (power telephone) and from receiving utility poles power telephone and com- rent for wires that were “overlashed” to panies.4 They have done so because fac- previously wires attached poles;1 to their restrictions, zoning tors such as gave the 1996 Act environ- regulations, mental placement start-up and wireless com- costs have equipment munications and options attachments rendered other Despite infeasible. service on utility poles; Internet alternatives, and this dearth of the attachment precluded the Act utilities from re- agreements between cable television com- ceiving rent for unused wires contained panies utility and companies general- have cables, optic fiber,”2 within fiber “dark ly voluntary. But, been the lack of alter- poles. attached to the natives given power has telephone and companies an advantage in negotiating at-

In petitions these consolidated for re- agreements: tachment Order, monopoly view of their in Report several (the “Petitioners”) power companies3 supply poles chal- could accommo- lenge the FCC’s formula determining them, date television cables has allowed in that, rent on the ground implement- when past, to charge monopoly rents. Overlashing physi- occurs when an Light attacher Company, va Power & Public Service cally ties additional cables already to cables Company, Electric & Gas Lighting Houston & Order, pole. attached to a Company, Power Texas Utilities Electric (1998). F.C.C.R. Company, 1998 WL 46987 American Electric Power Service Corporation, Compa- Commonwealth Edison ny, 2. Dark capacity Energy Corporation, fiber is "bare Duke and does not Union Electric Company, involve necessary Light and Florida electronics Power and Com- signals capaci- pany. transmit or receive over that ty.” Report and 13 F.C.C.R. at 6810. Congress 4.In when decided to inter- 3. The utilities in proceeding involved infra, approxi- ei- vene as described in the text petitioners ther as mately percent or intervenors are Gulf of cable television wires Company, Power Company, Alabama Power utility poles were attached to because cable Georgia Company, Company 10,000 companies Southern television owned less than Services, Tampa Company, Electric poles, compared poles Potomac to over ten million Company, Virginia Electric Power power telephone & compa- Electric owned 95-580, Company, (1978), Light Carolina Power & S.Rep. nies. See No. at 12-13 Duquesne Company, Light Company, reprinted Delmar- in 1978 U.S.C.C.A.N. 120-21. just and reason- [we]re monopoly pric- to solve In an effort (1978). § 1.1401 47 C.F.R. enacted able.” Congress, problem, ing (1) filing procedure forth Act, rule set Pub.L. Attachment the Pole of at- (codified about rents or conditions (1978) complaint at 47 U.S.C. 92 Stat. (2) tachment, id.; consid- (the Act”), see factors be (1994)) as an “1978 § 224 judge law by the administrative Act of ered to the Communications amendment determining the lawfulness of the rent articulated Congress The solution id.; utility sought, see conditions the range of rents specify was to that act maxi- determining the a formula for could companies power telephone receive, utility could see they mum rent companies television charge the cable formula, the § 1.1409. C.F.R. Under poles.5 Con- to their allowed to attach charge Act, not, rent a could was solution, maximum did in the gress’ proportionate share8 nature of the attacher’s however, voluntary change the before, and the maintaining costs of bare arrangement. As charges”9 associated right “carrying had no companies the cable television attach; thus, reject pole. utilities could offer to attach. company’s television rule, its promulgated After place, already the attachments As for in Flori companies cable television several changed their effectively Act FCC, contend complaints with the da filed could parties In the event the terms.6 Corporation was ing that Florida Power of an and conditions to the rent agree rents to at them unreasonable charging not to attachment, chose and the State Corp., Power See FCC v. Florida tach. attachments, the terms regulate 107 S.Ct. issue.7 would settle the FCC (1987). agreed The FCC 94 L.Ed.2d 282 and set a rents were unreasonable imple- promulgated The rule appealed re- lower rent. Florida 1978 Act authority under the ment its court, which held to this rule FCC’s decision authority; its limited flected had set effected that the rent the FCC and enforce- “provided complaint merely rates, property without taking of Florida Power’s to ensure procedures Corp. just compensation. Florida television for cable terms and conditions already possessed regulatory au- The FCC range as: 7. Congress expressed this industry. thority telephone over the pro- costs of than the additional less [N]ot (1994). passage the 1978 § The U.S.C. 151 attachments, than an viding pole nor more authority gave the FCC the Act per- by multiplying the amount determined well, in the limited power companies as albeit space, centage or the of the total usable 47 U.S.C. the text. See described in manner or conduit ca- percentage of the total duct (1994). 224(a)-(c) § pole at- occupied pacity, which is operating ex- by the sum of the tachment equaled proportionate share 8. The attacher’s capital and actual costs penses space occupied the attacher the amount duct, pole, con- attributable to the entire duit, space.” total "usable by the amount of divided right-of-way. 224(d)(1) (1994). range is § This 47 U.S.C. carrying regulations not define FCC do 9. The expressed less than commonly as not more according Law Dictio- charges, to Black's but adding particular incremental cost of proper- "[ejxpenses they incident nary, attachment, fully allocated nor more than the upkeep.” ed.1999). ownership, as taxes and ty such pole. costs of the (7th Dictionary 205 Law Black’s regulations Department Agriculture’s give cable The did not Since the 1978 Act attach, costs carrying charges as incidental right define companies television storing commodity before regula- associated the FCC's utilities could have avoided contract, see 7 C.F.R. delivery under a sales un- of attachment tion of rent and conditions 1488.2(f) (1999), and Ex- the Securities arrange- canceling existing der the Act change them in the lever- ments, Commission defines having removed. the attachments reasons, and interest age context as service contract did not take the utilities For obvious 31.4(1) (1999). charges, 17 C.F.R. see step. (11th FCC, 772 F.2d Cir. U.S.C.C.A.N. 4660-61.10 ap- The 1985). reversed, Supreme Court hold proach Congress adopted to encourage taking that no occurred because ing Flori competition power was to eliminate the voluntarily agreed da Power had to the governments local to set rates for “basic” companies’ attachments. Had Con that, cable service. Congress realized Act, gress, required in the 1978 utilities to least, the short run at give this would attachments, a taking may allow the have operators incumbent cable the ability to occurred, suggested. the court See Florida charge monopoly their subscribers prices. Corp. P ower 480 U.S. at 251 n. run, Prices long would decrease n. S.Ct. 1111 6. however, governments as local granted ad- The Florida Power decision clarified two given ditional franchises for a territory. precepts fundamental underlying the 1978 Enters., See Johnson Group, Inc. v. FPL implementing regula- Act and the FCC’s Inc., (11th Cir.1998). 162 F.3d (1) tions: had narrow companies New cable would be able to Act; under the 1978 it could enter the market and compete with the that, power companies only to ensure once company incumbent cable though, only if attachment, they consented to an the con- they utility pole could obtain they ditions of attachment and the rent given the same terms as those reasonable; were to receive were incumbent. subject rent formula was not In addition to these new demands for judicial review under Fifth Amend- pole space, a host of new telecommunica- Takings ment’s Clause because the 1978 (such tions carriers long as new distance voluntary provision Act’s ef- telephone carriers and telephone wide area taking just fected no for which compensa- providers), which used wires to tion would be due. carry their signals, began calling on the Not long after the Court decided Flori- power telephone companies and to lease Power, Congress da decided to foster com- space. They them did utility so because petition in the cable television industry. poles only afforded the feasible means for end, that To it enacted the Cable Commu- stringing their wires. Since the 1978 Act Policy nications Act of Pub.L. No. only regulated the rents utilities could (1984) (codified 98-549, 98 Stat. 2779 at 47 charge cable television companies, many (1994)) (the §§ 521-559 U.S.C. “Cable utilities demanded monopoly rents from Act”). enactment, Prior to this cable tele- telecommunications In an carriers. effort companies vision operated under exclusive problem, to alleviate this Congress, granted by franchises government, local give amended the 1978 Act to enti- usually municipality. Because these providing ties telecommunications and ca- effectively gave franchises companies the ble right television service the monopolies in to “nondis- territory, the franchise criminatory governments utility local access” to regulated they poles. See 47 rates 224(f) 1996).11 § charge could H.R.Rep. (Supp. subscribers. See U.S.C. II In the 98-934, 23-24, No. reprinted at parties in 1984 event the agree could not duel, conduit, governments 10. The local set the rates right-of-way or owned or companies charge could subscribers for controlled (2) it. "basic” services. Some states and the FCC (1), Notwithstanding paragraph a utili- companies set the charge rates the could for ty providing may deny electric service services, other such as Home Office. Box See system any cable television or telecommu- (1984); H.R.Rep. No. reprinted at 24 ducts, poles, nications carrier access to its in 1984 U.S.C.C.A.N.at 4661. conduits, rights-of-way, or on a nondis- criminatory basis where there is insuffi- 224(f) provides: 11. Section capacity cient and safety, for reasons of (1) A shall cable television reliability, generally applicable engi- system any or telecommunications carrier neering purposes. nondiscriminatory with any pole, access to Inter- give utility companies that require attachment, including terms poles because access to their providers to net the FCC rent, Act authorized the 1996 id. See was a cable service. Internet id. terms. See reasonable” “just and set Further, interpreted at 6795-96. 224(b)(1). § 224(a)(4), which states of section language (1) “utility,” also redefined The 1996 Act attach- any meant “any person from the definition changing 224(d)(3), ment, provides which section regulated charges are rates or whose applied rate to that the FCC’s to a State” or Government Federal carrier, by a telecommunications exchange carri- is a local who “any person companies power telephone mean steam, water, electric, er, gas, or a for accept would have (2) “pole redefined utility;”12 public See id. equipment. telephone wireless include attachments attachment” 6798-99; agency n.22. The also see service;13 infra of telecommunications providers Act precludes also determined create a formula the FCC directed receiving rent overlashed utilities a util- rent the attachment determining in- significantly those wires unless wires ser- .a telecommunications charge ity could pole. id. on See crease the burden (4) instructed utilities provider;14 vice interpreted Finally, costs of “unusa- apportion how receiving rent utilities from prohibit Act to poles on their space and “usable” ble” id,, at 6810. dark fiber. See provid- telecommunications among ers.15 of its scope interpreted Having thus formulas the FCC articulated authority, promul- February On utili- determining the attachment rents its author- implementing regulations gated ser- may charge ties 1996 Act. See ity under Until id. at 6820-30. See providers. 6777, 1998 WL vice 13 F.C.C.R. Act’s the 1978 maximum February Order, the FCC inter- Report and In the applies providers formula for cable 224(f) rent Act of the 1996 preted regardless of facilities directly used,” public, "utility” require also definitions 12. Both 1996). 153(46) (Supp. II § U.S.C. part, poles, at least in ownership used Compare 47 U.S.C. for wire communication. 1996). 224(e)(1) (Supp. § II 224(a)(1) U.S.C. 14. 224(a)(1) (1994), 47 U.S.C. 4.7 "tele- opinion, the term purposes of this Thus, For 1996). entity’s poles do if an (Supp. II providers” includes communications transmitting attachments have provide tele- companies that cable television pictures, sounds signs, signals, and "writing, to cable in addition services wire, communications like cable or other by aid of of all kinds services. 153(51) connection,” (Supp. II § 47 U.S.C. 1996), utility purposes of entity is not a 224(e)(2), (3) (Supp. II § 47 U.S.C. 15. the Act. 224(e)(2) requires 1996). utilities Section space” as "unusable apportion the costs of (1994), 224(a)(4) 47 U.S.C. Compare follows: 1996). 224(a)(4) (Supp. The II § 47 U.S.C. ' provid- the cost of utility apportion shall A telecommuni- the Act defined version of duct, conduit, right- carrier, pole, ing space on a cations, and telecommunications among space usable of-way than the other as follows: equals apportionment transmission, so that such entities “the is "Telecommunications” space providing costs of of the specified two-thirds among points between or would be space that choosing, than the usable user,, user’s of information equal ap- entity the, under an to such allocated or content of change in form without among attach- all costs received,” portionment of such 47 U.S.C. and as sent information ing 1996); entities. 153(43) (Supp. "telecommunica- § II appor- 224(e)(3) requires Section utilities any provider of telecommu- is tions carrier” follows: space” 153(44) as services, costs "usable tion the § 47 U.S.C. nications provid- apportion the costs utility shall 1996); A ser- “telecommunications (Supp. II accord- among space all entities ing usable “offering of telecommunications vice” is the space re- of usable percentage ing to the directly public, or such a fee entity. quired for each effectively available to be as classes users order, telecommunications service rate like orders, of its final is that, providers. After the maximum rent subject judicial then review under 47 equal will the sum of the “unusable” 402(a) (1994) and U.S.C. (providing judi- “usable” factors.16 rate orders) cial review of FCC and 28 U.S.C. 2342, §§ (providing judicial rule, In this amended incorpo- review of FCC orders in a United States rated almost verbatim the complaint pro- Court of Appeals). cess articulated in its 1978 rule. See 47 1.1404, §§ (1999). C.F.R. 1.1409 If the B. parties agree cannot to the rent or other response In (or terms an if FCC’s and utility Order, power companies denies access to poles), its across the coun- party con- try filed tending petitions for review the rent or in other terms are various courts of unjust appeals. On and March may petition unreasonable Gulf Power Company, Commission to settle the Alabama matter. That Company, party Georgia bears Power Company, the burden of establishing Southern prima Company joint case that Services filed a other party’s facie petition for position unjust in is review the Eleventh If unreasonable.17 Circuit Court of Appeals. the complainant April On fails to make out a Flor- prima ida case, Light & Company must also filed dismiss its com- facie petition plaint, in for review in which case the rent or Eleventh Circuit. conditions Subsequently, 8,May offered or demanded Tampa govern transac- Electric Company tion.18 If prima filed a petition case is for re- estab- facie lished, in Circuit, view the Eleventh the Commission determines the Potomac just maximum Electric Company petition reasonable filed a rent al- for re- lowed under the rule’s view the D.C. Then, formula. Circuit. The same day, specific decides the just Virginia Electric & Power reasonable Company, Duke rent complainant Energy pay Company, should or receive and Carolina Power & for the Light attachment. Company This petitions determination filed for review involves reviewing costs, items such Circuit; the Fourth Duquesne Light rate of investment, return on utility’s Company and Delmarva Light Power & filings before state or federal regulatory Company Circuit; filed the Third Amer- agencies, studies, and engineering 47 ican see Electric Power Service Corporation C.F.R. 1.1404(g)(l)-(13) (1999), in addi- Circuit; filed the Sixth Commonwealth tion to considering the maximum rent the Edison filed in Company the Seventh Cir- FCC’s yields. formula final cuit; and Union Electric Company filed in poles, 16.For space” "unusable factor example, For party if seeking =% (the x percentage pole space of the total complains demanding unusable) (the x attacher’s share of the (i.e., an unreasonable rent more than the bare ing maintaining pole) costs x (carry- formula), maximum allowed under the FCC’s = charges). The space” "usable factor it bears the proving burden of that the rent (the percentage space of occupied total usable demanded is fully more than the allocated by attacher) (the the percentage total of X pole. costs of the pole space usable) (net that is costs of the X pole) bare x (carrying charges). For con- possible It is the dispo- Commission’s duits, space” (net the "unusable x factor =% complaint sition of a dismissal or —whether linear space costs of unusable divided the an order setting one or may more attachers) number (carrying of charges). terms— X if, provisional turn out to be issues, = )4 after the decision The space” "usable for x factor conduits (1 putative the attacher decides duct to with- divided average the number of request draw its ducts for an adjustments ducts) less attachment. In this for maintenance (linear opinion, x we cost of assume for space) conduit x sake of usable discussion (carrying charges). 1.1417, putative §§ 47 C.F.R. attacher does not withdraw (1999); 1.1418 Report request its F.C.C.R. and abides the Commission’s at 6820-33. decision. plain- taking of the Act authorized 17 1996 Finally, June on Circuit. -Eighth the deny plaintiffs the did not Houston it 1998, property, tiffs’ respectively, July Rather, provided Public Company just compensation. & Power Lighting filed mo- Company before the Com- proceeding & Gas procedure Electric Service —a first case filed just compensa- in the determining intervene tions to mission—for motions were Their Eleventh Circuit. of Separation the not violate the tion did which same, day the August granted the Commission’s doctrine because Powers to consoli- motion the FCC’s granted judicial review. subject was decision for review. petitions all of the date id. 1397-98. See review, Peti- the for petitions In their A appealed. panel plaintiff The utilities (1) implementation challenge tioners court’s upheld district this court computing formula the FCC’s Act the 1996 authorized conclusion just com- taking without as a rents ment but de plaintiffs’ property, taking of the (2) implementation pensation; just ruling on the court’s to review clined tak- as a interpretation overlashing FCC’s ripe not That issue was compensation. (8) the just compensation; ing without had not plaintiffs review because com- include wireless authority to FCC’s operate Act that the 1996 would shown within equipment munications every just compensation deny them (4j framework; rate regulated Act’s Co. v. United Power See case. Gulf ser- Internet to include FCC’s Cir.1999) (11th States, 187 F.3d regu- Act’s the 1996 providers within vice I). panel af Finally, the (Gulf Potver framework;' FCC’s rate lated holding that al the district court’s firmed sepa- fibers to count dark decision just compen determine lowing the FCC to each discuss We attachments. rate not violate instance did in the first sation below, in III-VI. parts challenges these Id. at doctrine. of Powers Separation and its Company Power day Gulf On 1332-37. joint petition their filed co-plaintiffs utilit review, and several Gulf II. in the action United an brought ies19 review, for the Northern the Peti- Court petitions District In their States declaratory and seeking challenges Florida the same present District do not tioners v. Power Co. See injunctive relief. I. In- plaintiffs made Gulf Gulf (N.D.Fla. States, F.Supp. 1386 validity of attacking United the facial stead of rent 1998). range Contending Takings the Fifth Amendment under Act provided 1996 Act compensation al doc- Separation Powers and the Clause deny a operate every case would facial trine, question the Petitioners plaintiffs just compensation, these aspects validity of several Act was that the 1996 sought a declaration Order. Amend Fifth under the facially invalid chal constitutional We review Clause, permanent and a Takings de novo. See regulations agency lenges the Commission injunction prohibiting FCC, F.2d Coalition Tel. Rural id. enforcing the 1996 Act. (D.C.Cir.1988); also see that al also claimed plaintiffs 706(2)(B) (1994). use the We U.S.C. compen just to determine lowing the FCC agen analysis to review two-step Chevron of Powers Separation violated sation Chev a statute. See cy interpretations the granted court The district doctrine. De U.S.A., Natural Resources Inc. v. ron summary judg motion States’ United 2778, 837, 104 Council, S.Ct. 467 U.S. that, the although It concluded ment. fense Power Company, and Florida ny, Ohio Edison Power were Alabama The utilities Company, Corporation. Duke Georgia Company, Power Compa- Mississippi Company, Power Power 1272 (1984); Legal Envtl. complaint,

81 L.Ed.2d 694 Assis- rules taking Commission on a Found., EPA, 1467, may Inc. v. 118 F.Bd tance result. (11th Cir.1997). step 1473 Under Chevron question The second the Petitioners one, Congress whether has we determine present is whether the Commission’s for- spoken unambiguously question to the operate deny mula just will utilities has, ends; inquiry give issue. If it our we compensation in every case. The Gulf Chevron, Congress’ effect See intent. just Power I panel compensa- held that the 467 S.Ct. at U.S. at 104 question, tion when in a raised facial chal- two, step if we Under Chevron determine Act, lenge to the 1996 not ripe was unless Congress’ ambiguous, that intent we plaintiffs the just could show that compen- to a agency interpreta- defer reasonable sation be would denied in all cases. The 843, tion of intent. See id. at Congress’ compensation maximum limits—the 104 In resolving S.Ct. at 2781-82. wheth- minimum rents—that the Commission’s exists, ambiguity er an normal we use tools rule prescribes mirror the compensation construction, statutory affording without prescribed by limits the 1996 Act. Com- agency interpretations any deference. See (d)(1), pare 224(b), § 47 U.S.C. 47 with Cardoza-Fonseca, 421,

INS v. Act, C.F.R. 1.1409. 1996 Under the 446, 1207, 1221, 107 S.Ct. 94 L.Ed.2d 434 may lowest rent that just be considered (1987); Mining National Ass’n v. Secre- and reasonable is an amount equal to the Labor, 1264, (11th tary 153 F.3d incremental cost of adding new attach- Cir.1998). utility’s pole; highest to the rent that may just considered be and reason- III. equal able is an fully amount to the allocat- primary challenge

The Petitioners’ ed pole. costs of the See 47 U.S.C. to the Report and Order is that (d)(1). 224(b), A higher rent that is rate formula establishes cannot pass lower than these statutory limits would be muster under the Fifth Amendment Tak unjust and unreasonable. Because the ings The challenge Clause. Petitioners’ outer boundaries of the FCC’s formula are presents separate questions: Act, two will the identical to those of Gulf formula, implemented, Commission’s when ripeness Power /’s standard binds us. part utility Thus, effect taking poles, inquire we whether Petitioners so, if will operate deny the formula have shown that the Commission’s formula just compensation utilities in every always deny just case. will compensa- utilities tion. The I panel Power decided that the Gulf case, 1996 Act taking authorized a In utilities upon are not called property, concluded that the but issue of review an FCC determination that a whether operate the statute would to deny pole space at a rent does not just compensation every just case was amount compensation mandated ripe I, Takings review. See Power Clause. All that is before Gulf 1338; F.3d at see also Abbott Lab. v. Gard us is a facial attack on the Commission’s ner, 136, 148-49, U.S. S.Ct. formula allegation Petitioners’ (1967). panel’s 18 L.Ed.2d 681 The factors the Commission took into account resolution takings fashioning constitutes issue formula could never pro- binding precedent. Cargill just compensation. v. vide Turpin, essentially This is (11th Cir.1997). 120 F.3d argument We same utilities made therefore with begin premise I panel. panel’s re- Gulf Commission, 1996Act sponse authorizes the when was that the utilities failed to es- “ faced complaint an entity filed tablish that ‘no set of circumstances ex- ” providing television or telecommuni ists under the Act which would be valid.’ services, I, utility’s cations proper take a (quoting 187 F.3d at 1336 Gulf ty. Thus, Salerno, question our answer to the first United States pose yes: Petitioners when the S.Ct. L.Ed.2d 697 (1987)). provider, Although posit Petitioners telecommunications contends, may FCC the attachment be in which the FCC’s formula circumstances 224(d) regulated (e), under or no compensation, are not deny just will matter what it is. kind of attachment This confident, hand, at given record to position contrary is the Commission’s deny in just compensation will the formula authority regulate power compa- narrow to challenge Petitioners’ facial all cases. The organic nies. The FCC’s statute does not unripe, is therefore and we to the formula give regulate power to utilities. I, it. 187 F.3d do not address Gulf § (creating See U.S.C. 1338; at Cargill, F.3d 1386.20 at and foreign FCC to interstate commerce radio and wire communica- IV. tion). power Congress placed companies challenge The Petitioners regulatory authority within the agency’s carriers to include wireless FCC’s decision pole purposes only. attachment See “nondiscriminatory pro access” within 224(a)(1). § U.S.C. 224(f), claiming of section vision 224(a)(4) pole Section a attach- defines regu to statutory authority has no FCC “any by as attachment a cable televi- Act.21 carriers under the 1996 late wireless provider or of system sion telecommunica- agree. We duct, pole, conduit, tions or a Congress’ The FCC contends that fre- right-of-way by or a utili- owned controlled “any” utility, use the word in the 1996 quent ty.” according of A to section 224(a)(1) “any an intent to have the Com- person Act indicates is ... who owns or ducts, conduits, rights-of- broadly regulate poles, controls or mission used, any long way part, or in wire As as an attachment is whole ments.22 combination, Read in or a communications.”23 by company made a cable television reasons, Specifically, Congress' 22. cites of For the issue of whether use the same taking "any” following provi- mandatory overlashing with- two effects word ripe just compensation also out sions: rule, Utilities, review. under “pole any means The term attachment” at- overlashing required of allow cables no by system a cable television or tachment compensation unless the additional additional provider to a of telecommunications service “significantly the burden on cables increase conduit, duct, pole, right-of-way or owned pole.” 13 F.C.C.R. at and utility. by or controlled regulatory exception essentially 6807. This added). 224(a)(4) (emphasis § 47 U.S.C. exception, called the reflects the sometimes apply shall rate for This subsection exception,” present "engineering safety any pole used a cable televi- attachment 224(f)(2). in the Act. See U.S.C. That solely system cable service. sion exception prevent did not Power I Gulf regulations date Until the effective of finding panel that the 1996 Act autho- (e) of required under subsection this sec- taking, regulatory does rized a and neither tion, apply shall also this subsection exception prevent concluding us from any pole by a rate for attachment used overlashing taking. FCC's rule authorizes system telecommunications compensation too Just was abstract deter- (to the extent such carrier is not a carrier original statutory taking, for the mine agreement) party to a for the thus also too abstract determine provide any service. taking overlashing authorized the FCC’s 224(d)(3) added). (emphasis 47 U.S.C. I, 1338; 187 F.3d at see rule. Gulf Lab., at 87 S.Ct. also Abbott de- 23. The term "wire communications” is at 1515. writing, signs, fined “the transmission part signals, pictures, all supra, questions and sounds of kinds 21. As stated II wire, cable, statutory aid or other like connection pure fall a Chev- construction within points origin reception step analysis. We owe no between the ron one therefore transmission, including agency’s all instrumental- an such ities, deference to construction facilities, Cardoza-Fonseca, apparatus, U.S. at services statute. See 1221; receipt, forwarding, (among things, the Mining S.Ct. National communications) Ass'n, delivery incidental 153 F.3d provisions give these two the FCC authori- wire or radio. This growth hindered the ty regulate used, to poles attachments of the cable television market. The FCC at for part, communications, least wire regulate could what telephone companies by negative and implication give does not attach, charged to but regulate could not over attachments to power what the companies charged to at- poles for wireless communications.24 tach. Because telephone power poles generally did side-by-side, not run the ca- That integral wires are to the FCC’s companies ble at times were forced to authority is supported by legislative power attach to company poles instead of history of the Act.25Congress’ reason telephone poles, and pay monopoly for it passing that was the Commission did rents. To prevent the power companies not believe it had authority from taking unfair advantage of their power companies bott- since attachment ar- manner, leneck facilities in this rangements Congress “d[id] constitute communi- brought them under the FCC’s by regulatory cation wire or radio.” S.Rep. No.95- umbrella, 580, 14, permitting at reprinted “[flederal involve- 1978 U.S.C.C.A.N. (internal in pole at 122 quotation omitted). attachments matters ... marks where space The on a utility pole FCC that: reasoned ha[d] been designated and actually [wa]s being The fact used that operators ha[d] communications by services wire in-place found or facilities convenient or 15, cable.” Id. at reprinted even necessary for their businesses added). [wa]s not U.S.C.C.A.N. 123 (emphasis sufficient basis finding The reason leasing Congress gave of those facilities this [wa]s wire or ment authority radio communications. to the If FCC such were was that the case, might Commission already we be upon called all regulated other as- pects charges access the cable industry for use of and cable com- public and private panies right only roads were the entities seeking to ways wire, essential the laying poles attach to in 1978.

even access and rents for antenna sites. In when Congress amended the Id. Before Act, the FCC’s regulatory it once again expanded the authority did not power extend to compa- jurisdiction; FCC’s this time to include nies power because companies did not use attachments telecommunications service their poles primarily for communication providers. Nothing in the legislative his- 153(51) thus, such transmission.” 47 U.S.C. may end our review with that lan- added). (emphasis guage. understanding An of the communica- industry Congress' tions attempts regu- 24. The power companies fact that lating helps that do not it one why Congress understand poles use their to transmit wire communica- wrote prohibit section 224 to the FCC from tions are not covered the Act and the regulating pro- wireless communications. To implementing regulations, supra see vide understanding, this we use normal tools nn.12 supports & further this narrow statutory construction eliminate reading authority. of the FCC’s The dissent ambiguity hint of statutory language. takes reading issue Cardoza-Fonseca, section 480 U.S. at 432 n. stating that we make more of the wire-based ("As 107 S.Ct. at 1213 n. 12 we have ex- definition Congress than intended. plained, plain language of this statute reasoning dissent's contrary to its own appears question to settle the before us. suggestion that we follow the straightforward Therefore, legislative we look history statutory language of section 224. The lan- only determine there ’clearly whether ex- guage of plainly says section that attach- pressed legislative contrary intention’ to that may ments communications; poles be made to used wire language, which require question would us to says nothing it about at- strong presumption Congress ex- tachments for wireless communications. presses through its intent language chooses.”) James, (quoting United States v. 25. The statutory language 597, 606, itself 106 S.Ct. prohibits the from regulating pole (1986)); at- L.Ed.2d see also n.39 infra communications; tachments J., (Carnes, for wireless dissenting). facilities, the act to bottleneck purpose original tory indicates authority the FCC with provide not poles prevent does regulating behind —to wireless carriers.27 regulate to power companies telephone and the to to connect monopoly rents charging give the Congress did not Although changed. . bottleneck26 their facilities — placement authority regulate to FCC history suggests Rather, legislative equipment under sec- carriers’ of wireless sug- language alteration thing the same section) (or Tele- any of the 224 other tion allow telecom- to Congress wanted gests: 1996, that statute Act of communications ca- like the providers, munications address, such part, regulation did them, to before companies television ble Section governments. and local state facilities bottleneck to the utilities’ attach regulation of the “[t]he states that 33228 monopoly rents. pay having to without construction, and modification placement, (1996), 104-204, 92 Rep. H. No. services facilities personal wireless 10, 58. U.S.C.C.A.N. in 1996 reprinted or instru- government any State or local not bottleneck poles are The Petitioners' unreasonably not mentality thereof —shall Wireless carriers. for wireless facilities function- providers among discriminate an antenna poles “include to services; pro- not and shall ally equivalent clusters, cab- a communications or antenna prohibiting the effect of or have the hibit cables pole, coaxial inet at the base wireless service.” personal provision cabinet, con- connecting antennas 704(B)(i)(I),(II), 104-104, § 110 No. Pub.L. cabinet, ground support pads crete (codified (1996) U.S.C. Stat. for tele- trenching, and wires wires (II)). 332(7)(B)(i)(I), goes The section § service.” and electric phone requests act on a state to require toon this Order, at 6799. Most 13 F.C.C.R. reason- within a equipment wireless site tall any build- placed can equipment be put its time, a state require able more set-up requires the whole ing, and any request such denying reasons system. a wireline space then physical a state limit the writing, and to reasons in a Further, systems operate wireless wireless determining where assert can way than do wireline completely different equipment. See locate their can carriers transmit networks systems. Wireline 704(B)(ii)-(iv)(codified 47at U.S.C. § id. strung linear networks cables through with 332(7)(B)(ii)-(iv)). specificity networks, on the poles. Wireless between siting of Congress addressed which hand, through a series of transmit indicates in section 332 equipment wireless allow emissions that circle concentric intend section it did not working one anten- if to continue network authority regulate FCC Indeed, highly ques- it is na malfunctions. equipment. carriers’ of wireless placement are bottleneck there tionable whether systems. What facilities for wireless V. are utility poles is that question beyond challenge Next, Petitioners sys- facilities for wireless not bottleneck at authority regulate statutory not, because they are tems. Because under for Internet and cable tachments with Act deals wire the 1996 Bd., communications wireless 28.The Corp. Util. v. Iowa 26. See AT&T follows Act of 1996 L.Ed.2d 835 the Telecommunications 119 S.Ct. codified, section; as some (defining facilities bottleneck of anti however, thing to the essential facilities follow one akin do sections two law). trust Compare Pub.L. No. another. (1996), with 47 Stat. 149 §§ recognize that FCC seemed 27. The 1996). (Supp. II §§ U.S.C. that, "[t]here might when stated be case Com- applying the potential difficulties pole attachments.” to wireless rules mission's at 6799. F.C.C.R. Report carriers, service, programming 1996 Act. As wireless we other and subscriber agree interaction, has no under any, if is required which pro- that act to Internet service program- selection use of such video 1996 Act allows the viders. The Commis- ming programming or other service.” sion to rates cable service 522(6)(A), (B) (1994 U.S.C. & II Supp. service; and telecommunications Internet 1996).30 The only difference between this service is neither. definition of “cable service” and the defini- tion included the Act is argues 1978 the addi-

The FCC that Internet service tion of provided by system According a cable television the words “or use.” to is “solely subject either cable or is Report accompanying services” the House the 1996 224(b)(l)’s regulation amendments, to under section inclusion the words rates, terms, mandate to “ensure that the “or use” was meant to “reflect[ ] the evolu- pole [for and conditions attachments] are tion of video toward programming interac- just and reasonable.” 97, 104-204, tive Rep. services.” H. No. at (internal 13 quotation F.C.C.R. 6795-96 reprinted in 1996 U.S.C.C.A.N. 64. omitted). marks To accept argument this only This is the in the legislative sentence requires disregard to unambiguous us history attempts explain that to Congress’ Act, language the 1996 we which cannot change to the definition of “cable service.” Co., do. Robinson v. Oil See Shell 519 Although what it reflect means to an evo- 337, 340-41, 843, 846, 117 S.Ct. 136 lution programming of video toward inter- (1997). L.Ed.2d The Act 808 1996 calls for exactly clear, active service is not it is to Commission two establish rates for Congress’ clear from lack discussion pole One, attachments.29 described sec- change that it was minor both lan- 224(d), applies “any pole tion to guage Congress by and intent. If system used cable television addition of these two words meant to ex- solely provide to cable 47 service.” U.S.C. pand scope of the “cable service” defi- 224(d)(3). § The applies second rate to nition its traditional video base “charges used services, include all interactive video and provide carriers non-video, it would have said so. Without telecommunications services.” 47 U.S.C. comment, we substantive will not read 224(e)(1). For the FCC be able to this change minor a major effectuate regulate rent for an attachment that statutory shift. See v. Walters National provides then, Internet service Internet Survivors, Ass’n Radiation 473 U.S. qualify service must as either a cable ser- 305, 318, 3187, S.Ct. 87 L.Ed.2d vice or a telecommunications service. (1985) (stating that without substantive service,

Cable comment “it generally defined held that a one-way is “the change during transmission to sub codification not intended (i) (ii) scribers of programming, video alter the statute’s scope”) (citing Muniz reading The Although dissent contends that our section 522 states that its defini- (b)(l)'s ignores section 224 subsection man- apply only subchapter, give tions to that provide just date rates and reasonable meaning throughout words a consistent contrary, attachments. To the statute unless otherwise instructed Con- reading parts gives our effect to all of section States, gress. See Richards v. United 369 U.S. reading ignores 224 while the dissent’s 585, 591-92, S.Ct. L.Ed.2d 492 (d) (e) fact that subsections narrow (1962) ("We believe it fundamental that (b)(l)’s general just mandate to set rea- section of statute not be should read in straightforward sonable The language rates. Act.”) isolation from context of whole (d) (e) of subsections directs the FCC to (footnotes omitted); quotations and internal specific just establish two and reasonable Smith, (11th Nipper v. 39 F.3d rates, systems provid- one cable television Cir.1994). ing solely cable and one for telecom- providing munications carriers telecommuni- service; cations no other rates authorized. service, not as cable an information 467-74, 95 S.Ct. Hoffman, Bd. Joint Re Fed.-State (1975)). In service. 45 L.Ed.2d Serv., 13 F.C.C.R. on Universal “or the words the addition then did How (“Internet ¶ 66, 1998 WL service”? of “cable definition alter the use” information themselves providers Congress’ language plain The statute’s ”). Thus, lacks services.... suggest explanation sentence one the Inter- authority to statutory to in- definition expanded Congress theo- Act on the based the 1996 compa- net under television services clude a cable service. service is Internet ry allow them their customers offer to nies program- video with traditional interact Com- only remaining basis ming.31 Inter- mission’s is to treat 1996 Act interaction includes net under statute Although the addition to service. as a telecommunications Internet programming —in (e) 224(d)(3), (directing the definition See 47 U.S.C. programming video —within the lan a rate for telecom- develop read to service,” cannot we Commission “cable of broadly to in telecommu- providing carriers programming” munications “other guage however, service). FCC, did program “Other The services. Internet nications clude of Nor the us. argument of definition before part that been not raise ming” has specifi- the Inter when has the FCC since have because service” could it “cable and the tele- is not a researchers Internet only a tool for cally said net was re would commodity that See military, service. not communications (“The used Congress at Univer- regulation. When 6795 quire 13 F.C.C.R. have in then, it could that Internet language this concluded Service Order sal provid services Internet of a it cover telecom- provision tended is not the service Act.”); we will not Again, companies. the 1996 by cable under ed service munications of the definition scope the radically expand on Universal Joint Bd. Fed.-State In Re to an (“Internet ¶ base from video “cable service” Serv., 12 F.C.C.R. without some base statutory all-interactive-services defini- the meet does not service Congress that ”).33 indication substantive service.’ a ‘telecommunications tion of Walters, basis, its intent. is indeed statutory is no Accordingly, there 318, 105 at 3187.32 S.Ct. as a Internet the regulate under the service telecommunications aside, note that Furthermore, as an Act. Internet itself, FCC, the defined has the ambiguous. The statute found the court “programming means programming Video therefore, court, FCC's inter- to the compa- deferred considered by, generally provided were cov- co-mingled services by, a televi- provided that pretation programming rable 522(20). Today we are faced 47 U.S.C. station.” section sion broadcast ered faced from that entirely different situation an adopt urges us to Commission 32. The Electric Utilities in Texas D.C. Circuit reasoning in Texas Utilities Circuit’s D.C. Congress, amended in Co. because (D.C.Cir. FCC, F.2d 925 Electric Co. that ambiguity at issue eliminate Act to 1993), determining attach whether 224(d)(3) states section The new case. company to television a cable ments used regulated receive “solely services” cable regu to a are entitled provide Internet service services, which (Telecommunications rents. decline Act. We the 1996 under lated rent are discussed regulated rents receive also Utili Texas decided D.C. Circuit so. do The we now know infra.) Because the text 1996 amendments before the Co. ties Electric over type emphasizes statute enacted. Prior were attachment, entity acquiring the type of rent set a reasonable FCC to instructed reasoning of to follow no need we have sys by a cable television "any attachment Indeed, to follow Co. Electric (d)(1) (1994). Texas Utilities 224(a)(4), 47 U.S.C. tem.” duty disregard be to our reasoning would of a particular services specify It did not Congress’ un- give effect Chevron to were entitled to under system that cable television Chevron, at 842- passing Congress, in ambiguous intent. Because regulated rent. Act, it specify whether did not at 2781. S.Ct. the 1978 type of emphasis "place[d] greater following exam- given FCC has 33.The over the distributed be service to or the cellular services: ples attaching,” entity doing the type of services; radio mobile paging telephone and Co., F.2d Elec. Texas Utils. sum, Act,

In Congress, the 1996 au- within cables that also contain pro- fibers develop thorized the FCC to rent viding formulas cable or telecommunications ser- attachments providing vices, i.e., and tele- lit clearly fibers has communications services. Internet service the authority Thus, to regulate. unlike does not meet the definition of either a Internet carriers, service or wireless cable service or telecommunications ser- statute’s silence does not resolve the issue Therefore, vice. the 1996 Act does not of whether the may Commission regulate authorize the FCC to pole attach- dark fiber. Both Internet service and ments for Internet service. wireless carriers are similar to items the statute covers. The statute defines the

VI. kinds of covers, attachers and wireless The Petitioners’ final challenge is carriers do not fall within that definition. statutory to regu Similarly, the statute defines the types of charge late rents utilities for dark fiber covers, wire services it and Internet ser- fiber, attachments. Dark which exists vices are not one those services. We cable, within a optic fiber can, therefore, “consists of ... say, based on the 1996 Act capacity bare and does not alone, involve that the FCC the authority lacks necessary the electronics transmit or wireless provi- carriers and the receive signals over that capacity.” Re sion of Internet fiber, services. Dark how- Order; port and 13 F.C.C.R. ever, at 6810. (nor, is not a course, is it a advantage of cables with stringing attacher). lit type Thus, the fact that it dark fiber is that dark provides fiber ex falls outside the definitions of “cable ser- cess distribution and transmittal capacity vice” and “telecommunications service” a cable or telecommunications company tells nothing us Congress’ about intent to to use as its network expands. service regulate dark Congress fiber. say did that Dark fiber also may leased to be a it third did not intend have an pay attacher party. Because dark capaci fiber is bare twice for a single attachment, see H.R.Rep. ty, it technically is neither a telecommuni 92, No. reprinted in 1996 cations service nor a cable service. 59, In U.S.C.C.A.N. at but legislative the his- fact, all; it is not a is simply tory does not indicate whether dark fiber an inactive fiber. and its host were be single considered a attachment. Congress’ intent is ambigu- The 1996 Act authorizes the FCC to ous; therefore, proceed we step two of regulate the pole attachments of cable the Chevron analytical framework and con- television and compa- sider whether the FCC reasonably inter- that provide nies cable and telecommunica- preted Congress’ silence on dark fiber. tions 224; services. See 47 U.S.C. su- Chevron, See 467 U.S. at 104 S.Ct. at pra part V. says The 1996 Act nothing 2781-82.34 about regulating capacity. But, bare these bare capacity fibers not generally do exist The FCC decided that dark fiber is not on their own. They are usually separate located attaching entity from its host services; services; operator (personal PCS that section 224 does not authorize the FCC services); communications access to interex- provision carriers wireless or the service; access; change special wide area because, of Internet services as we state in the telephone (WATS); service; toll-free text, wireless carriers Internet service are service; MTS; line; private telex; tele- similar in kind attachers and services services; services; graph; video satellite fiber, however, the 1996 Act discusses. Dark resale services. In re Fed.-State Joint Bd. on is a altogether. different bird Neither the Serv., ¶ Universal 12 F.C.C.R. 8776 legislative statute nor the history discusses (1997). exhaustive, Even if list is not all Therefore, anything similar to dark fiber. we examples of these materially different discern, cannot even begin to let de- alone from the Internet. unambiguous, clare Congress' regard- intent 34. Our Congress' conclusion that intent ing dark fiber. ambiguous is consistent with our conclusion the FCC lacks attachment. In- provision FCC, carriers wireless According to at 6811.35 F.C.C.R. Finally, ternet service under the Act. pole burden on no more place fibers dark decision hold we not See id. their host attachments. do than fiber as an additional count leased dark fiber, by defi- dark since makes sense This attaching entity is reasonable. in- capacity and is nition, merely bare at the host within its cluded SO ORDERED. pole. is attached that cable time CARNES, Judge, concurring Circuit determining Further, presume we dissenting part: part and attachment, the utili- for the host the rent the dark will ty and the FCC account is In the Mat- review in these cases On attaching host. contained within 703(e) fibers Section Implementation ter in the fibers for the dark accounting By 1996, 13 Act Telecommunications cable, the the host (“Or- rent determination WL F.C.C.R. utility re- ensures ”), Commission the Federal Communi- the order of der any burden just compensation ceives implements which Commission cations at the may cause dark fiber Attachment Act to the Pole amendments Hence, once the attaches. contained time the host U.S.C. there is no Act Because compensated, of 1996. utility has been Telecommunications separate Act of as a Pole Attachment dark fiber to treat I believe reason amended, regulated rates decision extends entity, and the FCC’s attaching attachments, including those to all reasonable.36 to do so is ser- for wireless telecommunications used VII. service, I dissent and Internet vice reaching the Court’s decision parts of reasons, hold that foregoing For the contrary conclusion. . nondiscriminatory provision access por- of a taking majority opinion’s Act authorizes I with the agree do which occurs fa- poles, petitioners’ regarding the Petitioners’ tion of conclusions formula, prescribed a rent determination on the rate the FCC issues attack when cial or held pole set As this Court particular as to a in the Order. order Gulf States, F.3d devel- rent formula et al. v. United Power Co. Whether poles. Cir.1999) I”), (11th sec- (“Gulf not FCC, including its decision oped by the 224(f), requir- statutory provision ov- compensation for tion require additional to attachments, accept pole wires, just compensation ing utilities provides erlashed property under taking of per it is not a se review effects ripe for because is not just com- for which Fifth Amendment sufficiently form the a concrete presented Id. at 1328-31. required.1 is Further, that pensation hold we adjudication. fiber do address dark 224(e)(2) a fiber. Nor utility "ap- such a Section directs 35. attachment space pole, a within a cable whose providing on located portion cost of conduit, regulate duct, authority to under right-of-way than the FCC lacks or entities,” 224(0- among and section space usable "apportion the 224(e)(3) utility to a directs among space all enti- providing usable cost of 224(0 reads follows: Section as dark that fiber ties.” The determined (1) provide cable television utility a A shall entity from its separate a constitute did not carrier any system or purposes sections attacher host any pole, nondiscriminatory access (3). 224(e)(2) and conduit, or con- right-of-way owned or by narrow; it. trolled ruling hold- on dark is Our fiber (1), a utili- Notwithstanding paragraph for the FCC ing only that it was reasonable may deny a ty providing electric service host as one pure and its consider dark fiber any system or cable television telecommu- presented with a attaching entity. We are not ducts, poles, to its access nications carrier involving fiber that be- dark factual scenario conduits, rights-of-way, a non-dis- lit, or status of address the thus we do not comes petitioners But the have Lyes Beach, failed to City Florida, show Riviera Order’s, (11th rate formula will deny Cir.1999) (en banc). F.3d just compensation every case. Conse- “Read naturally, the word ‘any’ has an quently, challenge their facial to the for- expansive is, meaning, that ‘one or some ” and, mula unripe is as the majority opinion indiscriminately of whatever kind.’ concludes, it not be by should considered Gonzales, United States v. this Court.2 Id. S.Ct. 137 L.Ed.2d 132 (1997) (citations omitted) (as quoted in however, disagree, I with the majority Merritt, 1186). 120 F.3d at Applying that opinion’s holdings regarding wireless tele- 224(a)(4) definition to (b)(1), sections communications Internet ser- the FCC authority has the regulate all vice. It concludes that the FCC has no attachments, i.e., attachments “of whatever either wireless tele- kind,” id., by a cable system television or communications carriers or Internet ser- provider of telecommunications service to providers, vice plain but the language of duct, a pole, conduit, or right-of-way the statute opposite mandates the conclu- owned or by controlled utility. a sion.3 Obvious- ly, all attachments includes those attach- 224(b)(1) Section provides ments used to provide wireless and Inter- rates, terms, “shall and condi- net services. tions for attachments to rates, terms, majority opinion such does not just attempt and conditions are to justify its reasonable.” conclusions “pole regarding The term -wire- less 224(a)(4) ment” defined with the language is in section of the stat- ute, except “any say a cable television that there is a sys- “negative implication” tem or provider of telecommunications ser- created the statutory defi- conduit, duct, vice to nition of pole, or right-of- attachment coupled with (em- way utility.” owned controlled definition of utility.4 nega- But the added). phasis stated, implication, As this Court has tive all, if there is one at is not once, more than adjective ‘any’ nearly “the as strong majority as the seems to ambiguous; it has a well-established think. mean- The statutory definition of ing.” Co., Paper Merritt v. Dillard merely 120 serves exempt from mandatory (11th F.3d Cir.1997); accord access utility that does not make its criminatory clear; basis where there is so, insuffi- Congress intent of if that is the capacity cient safety, hand, reasons of end of the On matter. the other if reliability generally applicable engi- Congress spoken has not directly pre- to the neering purposes. issue, question cise at step a second of review play, comes into and court must deter- Likewise, agree majority I opin- with the mine agency’s whether the answer to the ion’s regarding petitioners’ conclusion ar- question Congress open permis- left reflects a gument that the just rate formula denies com- sible construction of the statute.” Jaramillo pensation when wires overlashed because INS, 1149, (11th Cir.1993) v. 1 (en F.3d 1152 compensation no additional is awarded. It is banc). We use normal statutory tools of possible that in some cases rate formula judge construction to Congress’ whether in- provide just compensation will for both the Fonseca, tent is clear. See v. INS Cardoza original attachment and the overlashed cables 421, 446, 1207, 1221, U.S. S.Ct. compensation. without additional Again, the (1987) Chevron, L.Ed.2d 434 (quoting petitioners have failed to show that the rate U.S. at 9). 843 n. 104 S.Ct. at 2782 n. deny just compensation formula will in every Thus, challenge case. their unripe. is 4.Pole attachment is defined in section 224(a)(4) "any as pole, attachment ... to a majority duct, As opinion, conduit, noted in the we apply or right-of-way owned or con- two-step analysis agency to Chevron inter- trolled utility.” Utility is defined in pretations U.S.A., of a 224(a)(1) statute. See Chevron "any person as ... who Council, Inc. v. Natural ducts, conduits, Resources owns or poles, controls or Defense used, 104 S.Ct. 81 L.Ed.2d rights-of-way part, in whole or in for (1984). "First, the court is to determine if the wire communications.” 224(b)(1) to ensure the FCC requires at tion for wire communications available poles poles its at- pole not make for all rates utility just If a does and reasonable all. communications, it does wire tachments, available used including those to poles its available to make have service. Internet However, once communications. wireless majority opin- agree I with the Finally, available, “in even poles makes its utility has the au- communications, the FCC it is sub- conclusion that ion’s for wire part,” pole at- for all mandatory access ject to dark fiber and thority regulate to the definition about Nothing tachments. aas not to treat dark fiber decision FCC’s to mandate negates FCC’s entity is reasonable. attaching separate all attachments. regulate rates discussed, dark already I have For reasons straightforward Notwithstanding within the definition is fiber opinion majority language, statutory ment, within the FCC’s and it is therefore justify its history to legislative turns FCC’s decision authority. The regulatory communications. wireless conclusion about attachment and its host to treat dark fiber Court, as as well Supreme But the reasonable, entity is be- attaching one the mean Court, held when repeatedly has notes, cause, “dark majority opinion as the plain its is clear from a statute ing of definition, merely capacity fiber, is bare legis unnecessary to it is look language, within its host is included Gonzales, at history. See lative to the that cable is attached the time (“Given straightfor 117 S.Ct. command, pole.” rea is no there statutory ward history.”); Ratzlaf legislative to resort to

son majority opinion is how problem 135, 147-48, States, 510 U.S. United v. the FCC is the conclusion reaches 126 L.Ed.2d 114 S.Ct. It does dark fiber. regulate authorized history to (“we legislative do not resort fiber is because dark concluding that clear”); so Unit statutory text that is cloud a Paradies, nor telecommuni- 1288 neither a cable service 98 F.3d ed States Cir.1996) (“Because (11th language service, ambiguous. is the statute cations clear, improper it would be is the statute also con- majority opinion the same But clarifi legislative history to look is nei- Internet service cludes because cation.”). statutory language Because a telecommunica- nor a cable service ther legisla unambiguous, resort is at issue unambiguous service, statute tions it is order to undermine history in tive outside the Internet service improper. unnecessary cannot majority authority. The regulatory service, the Internet respect With un- ways statute it both have —either concludes that majority opinion authority gives the FCC ambiguously it because regulate no has telecommunica- only a cable is neither Internet services, ambiguous the statute is tions service, and is a telecommunications nor authority to has whether about de- rate formulas by the not covered thus telecommu- more than cable 224(d) “solely” cable in section scribed consistent: My view is services. nications 224(e) for telecom- and in section services the FCC gives unambiguously The statute majority But munications services. pole at- any and all address fails opinion opinion’s view 224(b)(1) “regulate majority mandate tachments. rates, terms, and conditions not consistent. rates, that such unam- the statute I believe Because just and reason- terms, and conditions ” au- regulatory gives biguously attachment is de- .... Because able wireless thority over attachment,” because “any fined service, I dissent and Internet “any,” sec- unambiguous definition parts majority from those opinion

holding contrary. America,

UNITED STATES of

Plaintiff-Appellee, DUARTE-ACERO,

Jose Defendant-

Appellant.

No. 98-5756.

United States Appeals, Court of Circuit.

Eleventh

April Farnsworth,

Robin J. Asst. Fed. Pub. Def., Lauderdale, FL, Ft. Kathleen M. Williams, Def., Miami, FL, Fed. Pub. Defendant-Appellant.

Marc Eagelson, Sullivan, Michael P. Jordan, Miami, FL, Adalberto for Plain- tiff-Appellee. TJOFLAT,

Before FAY, Judge, Circuit Senior Circuit HANCOCK*, Judge, Senior District Judge.

TJOFLAT, Judge: Circuit This is an interlocutory appeal of a dis- trict court decision denying appellant’s mo- * Hancock, Honorable James H. silting Senior by designation. Alabama Judge District Northern District

Case Details

Case Name: Gulf Power Co. v. Federal Communications Commission

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 11, 2000

Citation: 208 F.3d 1263

Docket Number: 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

Court Abbreviation: 11th Cir.