The cable industry and power companies will square off over their
pole-attachment dispute before the U.S. Supreme Court Oct. 2, the second day of
the court's new term, according to the court's recently released calendar.
The National Cable & Telecommunications Association, backed by the
Federal Communications Commission, is trying to block power companies from
charging cable operators higher rates to attach cable wires to poles when
operators are providing both video programming and Internet traffic.
The power companies, led by Gulf Power Co., want the high court to let stand
a decision last year by the U.S. Court of Appeals for the 11th Circuit that said
FCC pole-attachment-rate protections to do not apply to cable when cable is not
offering a cable service. The court said cable-provided Internet was neither a
cable nor a telecommunications service, but instead an information service, and
thus, it is not covered by FCC rules.
Between now and the October hearing date, it's possible that the high court
could have a new justice if one of the current justices were to leave the bench.
Justice Sandra Day O'Connor did not participate when the court agreed to hear
the pole case, indicating that she might remove herself from further
proceedings. Justices usually bow out when they have conflicts of interest.
That leaves open the possibility that with eight justices deciding the case,
the court could end up in a 4-4 deadlock, which typically means the lower
court's decision stands.