WASHINGTON-The Supreme Court last week agreed to decide whether wireless carriers have the right to attach antennas to utility poles under government-regulated rates, a case with major business implications for mobile-phone and fixed wireless operators that want to bring Internet-based services to business and residential consumers.
At issue is a 1996 telecom act provision implemented by the Federal Communications Commission two years ago that extended government-set rates for pole attachments to a broader range of telecom service providers than was allowed previously. The FCC first was given authority to regulate pole attachment rates charged by telephone companies and utilities to cable TV operators in 1978.
Last year, a divided federal appeals court in Atlanta ruled the FCC erred in extending to wireless carriers, cable TV operators and others the same access to utility poles for Internet service on the same terms enjoyed by landline telephone companies.
The 11th Circuit Court of Appeals agreed with several power companies that claimed the FCC lacks authority to regulate the placement of wireless equipment on utility poles. The power firms also claimed the FCC’s formula for determining pole-attachment rents amounted to an unconstitutional taking of property, in violation of the Fifth Amendment. The court said the latter issue was not ripe for review.
The FCC and the National Cable Television Association asked the U.S. Supreme Court to review the ruling, and last Monday the high court said it would.
Filing a written brief supporting the FCC late last year was a collection of wireless carriers and manufacturers, including AT&T Wireless Services, Winstar Communications, XO Communications, Teligent Inc., DMC Stratex and Harris Corp.
“The FCC correctly determined that Congress intended all competitive telecommunications service providers, regardless of the technologies they employ in providing their services, to enjoy a right of access to the poles, conduits, ducts and rights-of-way of traditional utilities on regulated terms and conditions,” the group stated.
Increasingly, the high court is being asked to sort out telecom issues arising from technological advances, market changes and legal challenges in the five years since the enactment of the telecom reform act.
Indeed, the Supreme Court last week also agreed to hear oral argument in a case involving pricing methodology governing the rates charged to competitive telecom service providers that want to lease facilities from incumbent local telephone companies. The FCC asked the high court to review the case after the U.S. Court of Appeals for the 8th Circuit in St. Louis ruled states were free to set prices for connections to telephone company networks.
“In both of these cases, Congress decided that utilities owning bottleneck facilities must lease them to competitors at reasonable rates,” said Christopher Wright, FCC general counsel. “The FCC contended in our petitions seeking Supreme Court review that the rules the FCC adopted will speed the deployment of high-speed Internet access service and the development of competition in all communications markets. We are pleased that the Supreme Court granted our petitions.”
Elsewhere on the legal front, a federal appeals court earlier this month ruled that a subsidiary created by SBC Communications Inc. to provide high-speed Internet service is not exempt from a 1996 telecom act provision designed to foster competition by requiring Baby Bell telephone companies to lease network facilties at wholesale rates to competitors.
Separately, Verizon Communications is being taken to court by consumers angry at delays in getting high-speed Internet access over digital subscriber lines.
