Facts of the Case

The Pole Attachments Act requires the Federal Communications Commission (FCC) to set reasonable rates, terms, and conditions for certain attachments to telephone and electric poles. A pole attachment includes "any attachment by a cable television system or provider of telecommunications service to a [utility's] pole, conduit, or right-of-way." After the FCC issued an order that interpreted the Act to cover pole attachments for commingled high-speed Internet and traditional cable television services and attachments by wireless telecommunications providers, pole-owning utilities challenged the order. Reversing both of the FCC's positions, the Court of Appeals held that commingled services are not covered by either of the Act's two specific rate formulas and, thus, were not covered by the Act. Additionally, the appellate court held that the Act does not give the FCC authority to regulate wireless communications.

Question

Does the Pole Attachments Act cover attachments that provide both cable television and high-speed Internet service? Does the Act cover attachments by wireless telecommunications providers?

Conclusion

Yes and yes. In an opinion delivered by Justice Anthony M. Kennedy, the Court held 6-2 that the Act covers attachments that provide high-speed Internet access at the same time as cable television and 8-0 that the Act applies to wireless attachments by providers of wireless telecommunications services. The Court reasoned that the FCC's assertion of jurisdiction under the Act to regulate rates charged for attachments that provided commingled cable television and high-speed Internet access and for attachments by wireless telecommunications providers was reasonable and, therefore, entitled to deference. Joined by Justice David H. Souter, Justice Thomas filed an opinion concurring in part and dissenting in part, arguing that the FCC had failed to clearly explain the specific statutory basis on which the FCC was regulating rates for attachments that provided commingled cable television service and high-speed Internet access. Justice Sandra Day O'Connor took no part in the consideration or decision of the cases.