National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 22 (2002)

Page:   Index   Previous  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Next

348

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

Opinion of Thomas, J.

whether 47 U. S. C. 224(b)(1)'s general grant of authority empowers the FCC to regulate rates for "pole attachments," 224(a)(4) (1994 ed., Supp. V), that are not covered by either of the Act's two specific rate methodologies, 224(d) and 224(e) (1994 ed. and Supp. V). Petitioners, including the FCC, contend that 224(b)(1) (1994 ed.) authorizes the Commission to regulate rates for all "pole attachments" as that term is defined in 224(a)(4) (1994 ed., Supp. V). Respondents, on the other hand, argue that the FCC may only regulate rates for attachments covered by one of the two specific rate methodologies set forth in the Act, the position adopted by the Court of Appeals below.

It is not at all clear, however, that the disputed attachments at issue here—those providing both cable television programming and high-speed Internet access—are attachments for which neither of the Act's two specific rate methodologies applies. The FCC has made no determination with respect to this issue that this Court (or any other court) can review. Indeed, there is nothing in the record indicating whether any pole attachments currently exist that fall within the terms of 224(a)(4) yet are not covered by either of the Act's specific rate methodologies. Consequently, the specific legal issue the Court chooses to address is, at this time, nothing more than a tempest in a teapot.

The disputed attachments here provide two distinct services: conventional cable television programming and high-speed Internet access. No party disputes the FCC's conclusion that conventional cable television programming constitutes cable service. See ante, at 333. Crucially, however, the FCC has made no determination as to the proper statutory classification of high-speed Internet access using cable modem technology. In fact, in asserting its authority to regulate rates for attachments providing commingled cable television service and high-speed Internet access, the Commission explicitly declined to address the issue: "We need not decide at this time . . . the precise category into which Internet services fit." In re Implementation of Sec-

Page:   Index   Previous  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Next

Last modified: October 4, 2007