11th Circuit Denies Rehearing and Declines to Rehear En Banc Its April Ruling that the FCC Has No Jurisdiction Over Pole Attachments Carrying Internet Traffic

Last April the 11th Circuit issued a divided opinion finding that Internet service is neither cable service nor telecommunications service, and that the FCC therefore has no authority to set or limit pole attachment rents charged for cable lines that carry Internet traffic—as though the Pole Attachment Act protected only narrowly defined services, rather than physical facilities. See our advisory dated April 12, 2000. The FCC and NCTA petitioned for rehearing before the panel that heard and decided the case and also suggested that the entire court rehear the case en banc. On Sept. 12, the Court issued its formal orders denying the requests for rehearing and the suggestion for rehearing en banc, but in an unusual move Judge Carnes complained in dissent that the en banc rules as interpreted in the 11th Circuit improperly foreclose the court from rehearing the case even if all the active non-recused judges wanted to rehear the case. Judge Carnes noted that this case is one of exceptional and national importance. Because there is a conflict now among the circuits on the underlying issues and the decision pertained to multiple petitions that had been consolidated in the 11th Circuit from other circuits, Judge Carnes noted that Supreme Court review would be appropriate.

In the meantime it is expected that a stay of the mandate will be sought while petitions for certiorari to the Supreme Court are prepared. Such petitions must be filed within 90 days and the Supreme Court would likely decide whether or not to hear the case during the upcoming term.