Pole Case Nearing Supreme Court Action

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The Supreme Court is expected to decide Friday whether to take a case that
barred the Federal Communications Commission from regulating the rates cable
operators pay to attach their wires to telephone poles when the operators
transmit Internet traffic to subscribers.

According to the court's
Web site
, the nine justices are scheduled to review the case at its Jan. 19
conference, where four must vote to take a case and stage oral arguments. The
court did not say when it would announce the results of the Jan. 19 session.

The cable industry is seeking court review, claiming that the decision by a
panel of the U.S. Court of Appeals for the 11th Circuit would require cable
operators to pay much higher pole-attachment fees merely because their
facilities are carrying Internet traffic.

In its decision, the 11th Circuit said the FCC had authority to set rates
when cable operators provide a cable service, such as video programming, but not
when they provide Internet access, even on a commingled basis with video
programming. The court said cable-provided Internet access was not a cable
service protected by FCC rate rules.

Utility companies are urging the Supreme Court to let the lower-court
decision stand and not inject itself into the debate playing out at the FCC on
questions about whether cable Internet access is a cable service.

On Jan. 8, the Department of Justice told the high court it should take the
case and decide it on the basis of whether the FCC has authority to regulate
rates for any cable attachment to poles and conduits under the control of
utilities.

'That question can easily be answered without reference to whether Internet
access is a `cable service,' a `telecommunications service,' or some other form
of service,' the DOJ said.

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