National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 12 (2002)

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338

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

Opinion of the Court

tion 224(b)(1) to ensure that the 'rates, terms and conditions [for pole attachments] are just and reasonable,' . . . [a]nd we would, in our discretion, apply the subsection (d) rate as a 'just and reasonable rate.' " Id., at 6795- 6796 (footnote omitted).

Respondents are frustrated by the FCC's refusal to categorize Internet services, and doubly frustrated by the FCC's contingent decision that even if commingled services are not "cable service," those services nevertheless warrant the 224(d) rate. On the first point, though, decisionmakers sometimes dodge hard questions when easier ones are dispositive; and we cannot fault the FCC for taking this approach. The second point, in essence, is a challenge to the rate the FCC has chosen, a question not now before us.

We note that the FCC, subsequent to the order under review, has reiterated that it has not yet categorized Internet service. See, e. g., Pet. for Cert. in No. 00-843, p. 15, n. 4. It has also suggested a willingness to reconsider its conclusion that Internet services are not telecommunications. See, e. g., In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 15 FCC Rcd. 19287, 19294 (2000). Of course, the FCC has power to reconsider prior decisions. The order under review in this litigation, however, is both logical and unequivocal.

If the FCC should reverse its decision that Internet services are not telecommunications, only its choice of rate, and not its assertion of jurisdiction, would be implicated by the reversal. In this suit, though, we address only whether pole attachments that carry commingled services are subject to FCC regulation at all. The question is answered by 224(a)(4) and (b), and the answer is yes.

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. Congress may well have chosen to define a "just and reasonable" rate for pure cable television service, yet declined to produce a prospec-

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