The Legal Issue
     The case filed by more than a dozen utilities, Gulf Power Co. et. al. V. FCC, 98-6222, challenged the FCC's statutory authority to regulate whether ISPs and wireless providers could attach their wires and equipment to existing electric utility poles. Congress passed the 1978 Pole Attachments Act to allow cable and telecommunications companies to string their wire on utility poles for a fee determined by the FCC. The utility companies have been challenging the provision, saying it constitutes an unfair "taking" of their property.
     The court, in a 2-1 decision, agreed with the utilities' argument that the FCC has no authority to force them to provide access to wireless carriers and ISPs because the Telecommunications Act does not define Internet service as a cable service, and the Pole Attachments Act did not mention the Internet more than two decades ago.
     Judge Ed Carnes dissented, saying that the FCC has authority to regulate wireless and ISP attachments on utility poles because the 1996 act defines the wire as "any attachment by a cable television system or provider of telecommunications."

The Impact On Open Access
     The seemingly unrelated fight over the use of electric utility poles could impact a pending U.S. 9th Circuit Court of Appeals case that involves a fight between AT&T and Portland, OR, over whether the city has the authority to require the long distance giant to open its new high-speed cable network to competing ISPs. If the 9th Circuit were to take a stance similar to the 11th Circuit, it could limit localities' regulatory authority over Internet services offered via cable networks.
     Ken Fellman, chairman of the FCC's local and state government advisory committee, said that if the 11th Circuit's opinion is adopted by other federal courts, it could impact states differently depending on their cable franchise rules.
     "What it means varies from state to state," he said. In Colorado, "we don't have franchising authority over anything but cable services. It would mean cities would not be able to address those services in their franchises."
     Industry analyst Scott Cleland said it's "misguided" to apply the 11th Circuit decision to the Portland case because the cases have different focuses. He added, though, that if the 9th Circuit comes out with a different definition of what Internet service is and what cable service is, the competing opinions could send the issue to the U.S. Supreme Court.
     "If you have a 9th Circuit with a different point of view, it's more likely the Supreme Court would have to step in," said Cleland, manager of the Legg Mason Precursor Group.
     While the open access battle draws out in the court system, federal regulators at the FCC and Congress are choosing to stay on the sideline rather than creating any statutory or regulatory solutions.
     The FCC had no comment on the 11th Circuit case as it decides how to respond to the ruling.
     "The general counsel's office is reviewing it," a FCC spokeswoman said.
     FCC Chairman William Kennard rejected a request made last summer by the agency's local and state government advisory committee to open a formal inquiry into the cable-Internet issue, saying a formal proceeding would "chill investment in cable modem service." Kennard maintains that competition from high-speed cable Internet service is creating incentives for telephone companies to rollout their own competing high-speed digital subscriber lines (DSL).
     Fellman said his advisory committee "has not pressed the issue any further," with the FCC, but added that competing federal court opinions could create the right environment for the FCC to take a formal look into the issue. State and local governments sought guidance from the FCC, Fellman said, to help them sort out the arguments dragged into city council meetings by high-powered lobbyists on both sides of the issue.
     "It would create a good argument that they ought to," he said. "But it could cause the parties to appeal it to the Supreme Court. This thing will be up in the air for a while if it's left to the courts."

Decision Could Force Debate
     Cleland said AT&T should be careful what it wishes for the outcome of its case in Portland, because a ruling that says Internet service is a cable or telecommunications service could subject them to more regulations reserved for traditional common carrier technologies.
     "This is a case where AT&T and cable have to be worried about winning the battle and losing the war," he said.
     But at some point, he added, policymakers will have to answer the question: "What is cable broadband?"
     Counties and cities throughout the country — from Portland, OR, to Broward County, FL —have grappled with how or whether they should require cable companies, through their local franchises, to open their Internet networks to competing ISPs. And they are anxiously waiting for the 9th Circuit's opinion that has been expected since February.
     While they have looked to the FCC for some guidance, the agency has maintained a "hands-off" approach to the issue. Congress also has looked into the issue and lawmakers have introduced a passel of broadband-related legislation that has yet to generate any action.
- by Rebecca Weiner