The 11th Circuit Court of Appeals has handed cable and
telecommunications providers a victory over electrical utilities seeking to restrict
access to their facilities.
A three-judge panel for the Atlanta-based appellate court
recently affirmed a lower-court ruling that upheld a provision in the 1996
Telecommunications Act requiring nondiscriminatory access to a utility's poles,
conduits and rights-of-way.
The utilities wanted the appeals court to overturn the
Florida District Court, which rejected their claim that the requirement was
unconstitutional and that it amounted to governmental taking of property without just
Instead, the panel agreed with the lower court that the
provision was a "taking," but that the requirement was still legal because the
Federal Communications Commission's administrative process for determining pole rents
established a framework for setting just compensation.
Moreover, the court found that the FCC's
administrative process was just as likely to give the utilities "more" than the
minimum compensation required for providing access to its facilities.
Still to be decided by the appellate court is a challenge
by the utilities to the FCC order establishing the formula used to set pole rents.
In passing the 1996 Act, Congress amended the 1934
Communications Act to require that all investor-owned utilities "provide a
cable-television system or telecommunications carrier with nondiscriminatory access to any
poles, duct, conduit or right-of-way owned or controlled by it."
It also directed the FCC to set the appropriate rates for
access to the utilities' property.
"This is good for cable and it's good for
telecommunications carriers, because now, utilities can't keep them off. They have to
let competitors on their poles," said John Seiver, a partner with Cole, Raywid &
Braverman, a Washington, D.C.-based law firm that filed a friend-of-the-court brief in the
case on behalf of the National Cable Television Association.
Seiver said the concern was that utilities would try to
keep competitors off their poles at the same time they were making pushes into the
In the case of cable, which is already on the poles, the
worry was that utilities would use the industry's move into enhanced services to
impose higher rates on operators.
The original action was brought by utilities in Florida,
Alabama, Georgia, Mississippi and Ohio. Calls to a spokesman for the utilities requesting
comment were not returned.
Seiver said he expects the utilities to take their case to
the Supreme Court.