National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 2 (2002)

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328

NATIONAL CABLE & TELECOMMUNICATIONS ASSN., INC. v. GULF POWER CO.

Syllabus

ternet service is a "cable television system" only "to the extent that" it provides cable television, because neither the Eleventh Circuit nor the FCC has had the opportunity to pass upon it. This does not leave the cases in doubt, however. Because "by" limits pole attachments by who is doing the attaching, not by what is attached, an attachment by a "cable television system" is an attachment "by" that system whether or not it does other things as well. The Eleventh Circuit's theory that 224(d)(3)'s and (e)(1)'s just and reasonable rates formulas narrow 224(b)(1)'s general rate-setting mandate has no foundation in the plain language of 224(a)(4) and (b). Neither subsection (d)'s and (e)'s text nor the Act's structure suggests that these are exclusive rates, for the sum of the transactions addressed by the stated rate formulas is less than the theoretical coverage of the Act as a whole. Likewise, 1996 amendments to the Act do not suggest an intent to decrease the FCC's jurisdiction. Because 224(d) and (e) work no limitation on 224(a)(4) and (b), this Court need not decide the scope of the former. The FCC had to go one step further, because once it decided that it had jurisdiction over commingled services, it then had to set a just and reasonable rate. In doing so it found that Internet services are not telecommunications services, but that it need not decide whether they are cable services. Respondents are frustrated by the FCC's refusal to categorize Internet services and its contingent decision that commingled services warrant the 224(d) rate even if they are not cable service. However, the FCC cannot be faulted for dodging hard questions when easier ones are dispositive, and a challenge to the rate chosen by the FCC is not before this Court. Even if the FCC decides, in the end, that Internet service is not "cable service," the result obtained by its interpretation of 224(a)(4) and (b) is sensible. The subject matter here is technical, complex, and dynamic; and, as a general rule, agencies have authority to fill gaps where statutes are silent. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844. Pp. 333-341.

2. Wireless telecommunications providers' equipment is susceptible of FCC regulation under the Act. The parties agree that the Act covers wireline attachments by wireless carriers, but dispute whether it covers attachments composed of distinctively wireless equipment. The Act's text is dispositive. It requires FCC regulation of a pole attachment, 224(b), which is defined as "any attachment by a . . . provider of telecommunications service," 224(a)(4). "Telecommunications service," in turn, is defined as the offering of telecommunications to the public for a fee, "regardless of the facilities used." 153(46). A provider of wireless telecommunications service is a "provider of telecommunications service," so its attachment is a "pole attachment." Respondents' attempt to seek refuge in 224(a)(1) and (d)(2) is unavailing, for those

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