National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 23 (2002)

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Cite as: 534 U. S. 327 (2002)

Opinion of Thomas, J.

tion 703(e) of the Telecommunications Act of 1996: Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd. 6777, 6795 (1998). In their petition for certiorari, the Government and the FCC explained that the FCC proceeded in this manner "because the classification of cable Internet access as 'cable service,' 'telecommunications service,' or some other form of service is the subject of ongoing proceedings before the Commission concerning issues outside the Pole Attachments Act," and it " 'd[id] not intend . . . to foreclose any aspect of the Commission's ongoing examination of those issues.' " Pet. for Cert. in No. 00-843, p. 5, n. 2 (quoting 13 FCC Rcd., at 6795).

The statutory scheme, however, does not permit the FCC to avoid this question. None of the parties disputes that the two specific rate methodologies set forth in the Act are mandatory if applicable. If an attachment by a cable television system is used solely to provide cable service, the rate for that attachment must be set pursuant to the methodology contained in 224(d). See 47 U. S. C. 224(d)(3). And, if an attachment is used to provide telecommunications service, the rate for that attachment must be set pursuant to the methodology contained in 224(e). As a result, before the FCC may regulate rates for a category of attachments, the statute requires the FCC to make at least two determinations: whether the attachments are used "solely to provide cable service" and whether the attachments are used to provide "telecommunications service."

Here, however, the FCC has failed to take either necessary step. For if high-speed Internet access using cable modem technology is a cable service,1 then attachments providing commingled cable television programming and high-speed Internet access are used solely to provide cable service, and the rates for these attachments must be regulated pursuant to 224(d)'s methodology. Or if, on the other hand, such In-1 See, e. g., MediaOne Group, Inc. v. County of Henrico, 97 F. Supp. 2d 712, 715 (ED Va. 2000), aff'd on other grounds, 257 F. 3d 356 (CA4 2001) (concluding that cable modem service is a cable service).

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