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Court ruling shields cable from pole attachment bullet

Thu, 02/28/2002 - 7:00pm
Staff

In a huge win for the cable industry, the Pole Attachments Act does cover attachments that provide high-speed Internet access at the same time as cable TV, the U.S. Supreme Court ruled, in a 6-2 decision.

The decision on National Cable & Telecommunications Association Inc. v. Gulf Power Co. et al reverses one from the 11th Circuit Court of Appeals, which had held that co-mingled services of high-speed Internet and traditional cable TV services were not covered by the Act's two rate formulas.

The appeals court had reversed a U.S. Federal Communications Commission decision that the Act did cover pole attachment for the two services, as well as those by wireless telecom providers.

"On (Gulf et al's) view, if a cable company attempts to innovate at all and provide anything other than pure television, it loses the protection of the Pole Attachments Act and subjects itself to monopoly pricing," Justice Anthony Kennedy said of the decision. "The resulting contradiction of longstanding interpretation–on which cable companies have relied since before the 1996 amendments to the Act–would defeat Congress' general instruction to the FCC to 'encourage the deployment' of broadband Internet capability and, if necessary, 'to accelerate deployment of such capability by removing barriers to infrastructure investment'."

Dan Brenner, the National Cable & Telecommunications Association's senior vice president of Law and Regulatory Policy, said the decision "means that utility companies cannot charge arbitrarily higher prices for cable attachments to utility poles simply because cable operators provide their customers with high-speed Internet, as well as video services."

Pole owners have argued that cable operators no longer qualify for government protection for the rates they pay for access. In one typical case, the pole owner wanted to boost that price from $6 per month to $36 per month, according to NCTA documents. At that price, a cable subscriber's bill could rise by $2 per month, and not include any new services, NCTA argued.

Brenner said the decision "overcomes a potential impediment to broadband deployment, especially in rural areas."

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