Pensacola, Fla. -- It is constitutional for Congress to
order utilities to provide competitors with nondiscriminatory access to poles, as long as
the utilities are compensated, a Florida federal court has ruled.
Gulf Power Co. of Florida sued the federal government to
challenge segments of the Telecommunications Act of 1996. The language at issue opens
utilities' private property to competitors. But the power company said this results
in unlawful taking without just compensation.
Further, the company challenged the right of Congress to
assign rate-setting authority to the Federal Communications Commission.
Telecommunications attorneys, in papers supporting the
government position, argued that poles are a unique form of property, since they would not
have been placed without eminent-domain authority borrowed from the government.
The National Cable Television Association, the Cable
Telecommunications Association and seven state cable associations filed briefs in support
of the government's case.
Judge Lacey Collier of the U.S. District Court for the
Northern District of Florida made the ruling on a summary-judgment request by the
The judge ruled that the "permanent physical
invasion" of poles by competitors is a per se taking of property under the Fifth
Amendment, but it is constitutional because the pole owner gets paid. The ruling added
that rate setting by the FCC is the only practical approach to fair compensation.
Attorneys watching the case anticipated that the utilities
will appeal, possibly all the way to the Supreme Court.