United States Supreme Court Grants Certiorari in Gulf Power II - Argument Scheduled for October 2001

This morning, in a favorable development for broadband and telecommunications providers, the United States Supreme Court announced that it will review the April 2000 decision of the United States Court of Appeals for the 11th Circuit in the "Gulf Power II” case. As reported previously, the decision by the 11th Circuit last April held that the FCC has no authority to set or limit pole attachment rents charged for cable lines that carry Internet traffic (see our advisory dated April 12, 2000). The 11th Circuit ruled that the pole-attachment provisions of the Communications Act applied only to attachments carrying cable television and telecommunications services and that because Internet services were neither, federal pole attachment regulation did not apply to pole attachments carrying Internet traffic. The 11th Circuit also held that the FCC could not regulate or mandate attachments for wireless carriers that provide telecommunications or broadband services either.

Some electric utilities have used Gulf Power II to force pole attachment rates to prohibitive levels (in some cases higher than $50 per pole) and to deny cable operators and CLECs access to poles. After denying reconsideration last fall, however, the 11th Circuit agreed to stay the issuance of the mandate in Gulf Power II pending Supreme Court action on the petitions for certiorari. (See our advisory dated Oct. 16, 2000.) With today’s grant of those petitions, that stay will now remain in effect until the Supreme Court rules on the merits.

Briefs on behalf of the cable industry and FCC will be due in early March with utility briefs due in early April. Argument has been tentatively scheduled for the beginning of the Court’s next term, which commences in October 2001. Today’s decision, for the time being, preserves the status quo of federal regulation of the rates, terms and conditions of attachments to utility poles by cable operators, wireline and wireless telecommunications carriers providing telecommunications, Internet and cable services.

If you have any questions about today’s favorable development at the Supreme Court, please do not hesitate to contact us.