National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 14 (2002)

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340

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

Opinion of the Court

"[T]o the extent a wireless carrier seeks to attach a wireline facility to a utility pole . . . the wireline attachment is subject to Section 224." Brief for Respondents American Electric Power Service Corp. et al. 31; see also Brief for Respondents Atlantic City Electric Co. et al. 40; Brief for Repondent TXU Electric Co. 18; Brief for Respondent Florida Power & Light Co. 10-11. We agree, and we so hold.

The dispute that remains becomes a narrow one. Are some attachments by wireless telecommunications providers—those, presumably, which are composed of distinctively wireless equipment—excluded from the coverage of the Act? Again, the dispositive text requires the FCC to "regulate the rates, terms, and conditions for pole attachments," 224(b) (1994 ed.), and defines these to include "any attachment by a . . . provider of telecommunications service," 224(a)(4) (1994 ed., Supp. V). "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."

Once more, respondents seek refuge in other parts of the statute. A "utility" is defined as an entity "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 definition, though, concerns only whose poles are covered, not which attachments are covered. Likewise, the rate formula is based upon the poles' "usable space," which is defined as "the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment," 224(d)(2) (1994 ed.). This definition, too, does not purport to limit which pole attachments are covered.

In short, nothing in 224(a)(1) or 224(d)(2) limits 224(a)(4) or 224(b). Even if they did, moreover, respondents still would need to confront the provision for "associ-

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