National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 6 (2002)

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332

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

Opinion of the Court

precludes a position that Congress intended to distinguish between wire and wireless attachments." Id., at 6798.

Certain pole-owning utilities challenged the FCC's order in various Courts of Appeals. See 47 U. S. C. 402(a) (1994 ed.); 28 U. S. C. 2342 (1994 ed.). The challenges were consolidated in the Court of Appeals for the Eleventh Circuit, see 2112(a), which reversed the FCC on both points. 208 F. 3d 1263 (2000). On the question of commingled services, the court held that the two specific rate formulas in 47 U. S. C. 224(d)(3) and (e)(1) (1994 ed., Supp. V) narrow the general definition of pole attachments. The first formula applies to "any pole attachment used by a cable television system solely to provide cable service," 224(d)(3), and the second applies to "pole attachments used by telecommunications carriers to provide telecommunications services," 224(e)(1). The majority concluded that attachments for commingled services are neither, and that "no other rates are authorized." 208 F. 3d, at 1276, n. 29. Because it found that neither rate formula covers commingled services, it ruled those attachments must be excluded from the Act's coverage.

On the wireless question, the majority relied on the statutory definition of "utility": "any person . . . who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications." 224(a)(1). The majority concluded that the definition of "utility" informed the definition of "pole attachment," restricting it to attachments used, at least in part, for wire communications. Attachments for wireless communications, it held, are excluded by negative implication. Id., at 1274.

Judge Carnes dissented on these two issues. In his view, 224(a)(4) and (b) "unambiguously giv[e] the FCC regulatory authority over wireless telecommunications service and Internet service." Id., at 1281 (opinion concurring in part and dissenting in part). We granted certiorari. 531 U. S. 1125 (2001).

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