NCTA Wants Key Pole Case Reviewed

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WASHINGTON -The cable industry asked the U.S. Supreme Court to review a lower court decision that exposed operators deploying high-speed Internet service to much higher connection charges for poles and conduits owned by phone and power utilities.

Cable operators face higher rates-in some cases, 500 percent higher-after a panel from the 11th U.S. Circuit Court of Appeals held in April that federally regulated pole-attachment rates do not protect cable operators that use their wires to provide Internet access. Rehearing was denied.

The judges said Federal Communications Commission rate rules protected cable operators only when those operators provided cable television service.

After declaring Internet access was not a cable service, the court concluded that FCC rules could not shield cable operators providing Internet access from paying unregulated pole rates.

In its Nov. 22 request for Supreme Court review, the National Cable Television Association said the 11th Circuit's decision was unsound because the law clearly stated that FCC rules cover "any attachment by a cable television system to pole, ducts, conduits, or rights-of-way controlled by a utility."

The 11th Circuit agreed to postpone the effective date of its decision until after the Supreme Court decided whether it would hear the NCSA's appeal.

If the high court declines, operators around the country would likely pay much higher rates to lease space on telephone poles owned by entities that compete directly with cable for broadband subscribers.

NCTA said it was inconceivable that Congress, in the Telecommunications Act of 1996, intended cable operators to forfeit rights to regulated pole rates simply because wires that once carried only video programming now have the capability to provide high-speed Internet access.

"Stripping cable operators of essential regulatory protections if they offer Internet service would directly undermine the 1996 Act's goals of fostering competition for the provision of communications services and promoting the continued development and deployment of Internet service," NCTA said in its Nov. 22 court brief.

The Justice Department also wants a high-court review on the FCC's behalf.

DOJ said the case was "one of exceptional national significance" that could stall cable's deployment of broadband if operators are forced to confront "the full brunt of monopolistic rate practices" of utilities.

Kenneth Free, an attorney with the Washington firm of Goldberg, Godless, Wiener & Wright-which is representing Texas-based TXU Electric Co.-said the appeals court was correct to place limits on cable operators' rights to attach to poles at government-set rates.

According to how cable and the FCC read the law, Free said, cable operators could hang banner advertisements from utility poles or even enter the utility business and expect to pay regulated rates. That was incorrect, he said.

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