NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, INC. v. GULF POWER CO. et al.

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NATIONAL CABLE & TELECOMMUNICATIONS
ASSOCIATION, INC. v. GULF POWER CO. et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 00–832. Argued October 2, 2001—Decided January 16, 2002*
The Pole Attachments Act requires the Federal Communications Commis-
sion (FCC) to set reasonable rates, terms, and conditions for certain
attachments to telephone and electric poles. 47 U. S. C. § 224(b). A
“pole attachment” includes “any attachment by a cable television sys-
tem or provider of telecommunications service to a [utility’s] pole, duct,
conduit, or right-of-way.” § 224(a)(4). Certain pole-owning utilities
challenged an FCC order that interpreted the Act to cover pole attach-
ments for commingled high-speed Internet and traditional cable tele-
vision services and attachments by wireless telecommunications pro-
viders. After the challenges were consolidated, the Eleventh Circuit
reversed the FCC on both points, holding that commingled services are
not covered by either of the Act’s two specific rate formulas—for attach-
ments used “solely to provide cable service,” § 224(d)(3), and for attach-
ments that telecommunications carriers use for “telecommunications
services,” § 224(e)(1)—and so not covered by the Act. The Eleventh
Circuit also held that the Act does not give the FCC authority to regu-
late wireless communications.
Held:
1. The Act covers attachments that provide high-speed Internet ac-
cess at the same time as cable television. Pp. 333–341.
(a) This issue is resolved by the Act’s plain text. No one disputes
that a cable attached by a cable television company to provide only cable
television service is an attachment “by a cable television system.” The
addition of high-speed Internet service on the cable does not change the
character of the entity the attachment is “by.” And that is what mat-
ters under the statute. This is the best reading of an unambiguous
statute. Even if the statute were ambiguous, the FCC’s reading must
be accepted provided that it is reasonable. P. 333.
(b) Respondents cannot prove that the FCC’s interpretation is un-
reasonable. This Court need not consider in the first instance the ar-
gument that a facility providing commingled cable television and In-
*Together with No. 00–843, Federal Communications Commission et
al. v. Gulf Power Co. et al., also on certiorari to the same court.

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ternet service is a “cable television system” only “to the extent that”
it provides cable television, because neither the Eleventh Circuit nor
the FCC has had the opportunity to pass upon it. This does not leave
the cases in doubt, however. Because “by” limits pole attachments by
who is doing the attaching, not by what is attached, an attachment by
a “cable television system” is an attachment “by” that system whether
or not it does other things as well. The Eleventh Circuit’s theory that
§§ 224(d)(3)’s and (e)(1)’s just and reasonable rates formulas narrow
§ 224(b)(1)’s general rate-setting mandate has no foundation in the plain
language of §§ 224(a)(4) and (b). Neither subsection (d)’s and (e)’s text
nor the Act’s structure suggests that these are exclusive rates, for the
sum of the transactions addressed by the stated rate formulas is less
than the theoretical coverage of the Act as a whole. Likewise, 1996
amendments to the Act do not suggest an intent to decrease the FCC’s
jurisdiction. Because §§ 224(d) and (e) work no limitation on §§ 224(a)(4)
and (b), this Court need not decide the scope of the former. The FCC
had to go one step further, because once it decided that it had jurisdic-
tion over commingled services, it then had to set a just and reasonable
rate. In doing so it found that Internet services are not telecommunica-
tions services, but that it need not decide whether they are cable serv-
ices. Respondents are frustrated by the FCC’s refusal to categorize
Internet services and its contingent decision that commingled services
warrant the § 224(d) rate even if they are not cable service. However,
the FCC cannot be faulted for dodging hard questions when easier ones
are dispositive, and a challenge to the rate chosen by the FCC is not
before this Court. Even if the FCC decides, in the end, that Internet
service is not “cable service,” the result obtained by its interpretation
of §§ 224(a)(4) and (b) is sensible. The subject matter here is technical,
complex, and dynamic; and, as a general rule, agencies have authority
to fill gaps where statutes are silent. Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 843–844. Pp. 333–341.
2. Wireless telecommunications providers’ equipment is susceptible of
FCC regulation under the Act. The parties agree that the Act covers
wireline attachments by wireless carriers, but dispute whether it covers
attachments composed of distinctively wireless equipment. The Act’s
text is dispositive. It requires FCC regulation of a pole attachment,
§ 224(b), which is defined as “any attachment by a . . . provider of tele-
communications service,” § 224(a)(4). “Telecommunications service,” in
turn, is defined as the offering of telecommunications to the public for
a fee, “regardless of the facilities used.” § 153(46). A provider of wire-
less telecommunications service is a “provider of telecommunications
service,” so its attachment is a “pole attachment.” Respondents’ at-
tempt to seek refuge in §§ 224(a)(1) and (d)(2) is unavailing, for those

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sections do not limit which pole attachments are covered and thus do
not limit § 224(a)(4) or § 224(b). Even if they did, respondents would
have to contend with the fact that § 224(d)(2)’s rate formula is based
upon the poles’ space usable for attachment of “wires, cable, and associ-
ated equipment.” If, as respondents concede, the Act covers wireline
attachments by wireless providers, then it must also cover their attach-
ments of associated equipment. The FCC was not unreasonable in de-
clining to draw a distinction between wire-based and wireless associated
equipment, which finds no support in the Act’s text and appears quite
difficult to draw. And if the text were ambiguous, this Court would
defer to the FCC’s judgment on this technical question. Pp. 341–342.
3. Because the attachments at issue fall within the Act’s heartland,
there is no need either to enunciate or to disclaim a specific limiting
principle based on the possibility that a literal interpretation of “any
attachment” would lead to the absurd result that the Act would cover
attachments such as, e. g., clotheslines. Attachments of other sorts may
be examined by the agency in the first instance. P. 342.
208 F. 3d 1263, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Scalia, Ginsburg, and Breyer, JJ., joined, and in
which Souter and Thomas, JJ., joined as to Parts I and III. Thomas,
J., filed an opinion concurring in part and dissenting in part, in which
Souter, J., joined, post, p. 347. O’Connor, J., took no part in the consid-
eration or decision of the cases.
James A. Feldman argued the cause for petitioners in
No. 00–843. With him on the brief were Solicitor General
Olson, Acting Solicitor General Underwood, Acting Assist-
ant Attorney General Nannes, Deputy Solicitor General
Wallace, Robert B. Nicholson, Robert J. Wiggers, and Jane
E. Mago. Peter D. Keisler argued the cause for petitioner
in No. 00–832. With him on the briefs were Paul J. Zid-
licky, Daniel L. Brenner, Neal M. Goldberg, David L. Nicoll,
Paul Glist, John D. Seiver, and Geoffrey C. Cook. Anthony
C. Epstein and William Single IV filed a brief for Worldcom,
Inc., respondent under this Court’s Rule 12.6, in support of
petitioners in both cases.
Thomas P. Steindler argued the cause for respondents in
both cases. With him on the brief for respondents American

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Electric Power Service Corp. et al. were Shirley S. Fuji-
moto, Christine M. Gill, J. Russell Campbell, Andrew W.
Tunnell, and Ralph A. Peterson. Robert P. Williams II and
Charles A. Zdebski filed a brief for respondents Atlantic City
Electric Co. et al. in both cases. Jonathan L. Wiener and
Neil Anderson filed a brief for respondent TXU Electric Co.
in both cases. Jean G. Howard filed a brief for Florida
Power & Light Co., respondent in No. 00–843.†
Justice Kennedy delivered the opinion of the Court.
I
Since the inception of cable television, cable companies
have sought the means to run a wire into the home of each
subscriber. They have found it convenient, and often essen-
tial, to lease space for their cables on telephone and electric
utility poles. Utilities, in turn, have found it convenient to
charge monopoly rents.
Congress first addressed these transactions in 1978, by
enacting the Pole Attachments Act, 92 Stat. 35, as amended,
47 U. S. C. § 224 (1994 ed.), which requires the Federal
Communications Commission (FCC) to “regulate the rates,
†Briefs of amici curiae urging reversal were filed for the Association
for Local Telecommunications Services et al. by Philip L. Verveer, Theo-
dore Case Whitehouse, Joseph M. Sandri, Jr., Howard J. Symons, and
Douglas I. Brandon; and for the United States Telecom Association
et al. by William P. Barr, Michael E. Glover, Edward Shakin, Richard
G. Taranto, and John W. Hunter.
Briefs of amici curiae urging affirmance were filed for Real Access
Alliance by William Malone, Matthew C. Ames, and Clarine Nardi Rid-
dle; for the Site Owners and Managers Alliance of the Personal Com-
munications Industry Association by Dennis P. Corbett and H. Anthony
Lehv; and for the United Telecom Council et al. by Jill Mace Lyon and
Edward Comer.
Briefs of amici curiae were filed for the Consumers Union et al. by
Cheryl A. Leanza, Andrew Jay Schwartzman, and Harold J. Feld; and for
Earthlink, Inc., by John W. Butler, Earl W. Comstock, and David Baker.

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terms, and conditions for pole attachments to provide that
such rates, terms, and conditions are just and reasonable.”
§ 224(b). (The Act is set forth in full in the Appendix, infra.)
The cases now before us present two questions regarding the
scope of the Act. First, does the Act reach attachments that
provide both cable television and high-speed (broadband) In-
ternet service? Second, does it reach attachments by wire-
less telecommunications providers? Both questions require
us to interpret what constitutes a “pole attachment” under
the Act.
In the original Act a “pole attachment” was defined as
“any attachment by a cable television system to a pole, duct,
conduit, or right-of-way owned or controlled by a utility,”
§ 224(a)(4). The Telecommunications Act of 1996, § 703, 110
Stat. 150, expanded the definition to include, as an additional
regulated category, “any attachment by a . . . provider of
telecommunications service.” § 224(a)(4) (1994 ed., Supp.
V).
Cable companies had begun providing high-speed Internet
service, as well as traditional cable television, over their
wires even before 1996. The FCC had interpreted the Act
to cover pole attachments for these commingled services,
and its interpretation had been approved by the Court of
Appeals for the District of Columbia Circuit. Texas Util.
Elec. Co. v. FCC, 997 F. 2d 925, 927, 929 (1993). Finding
nothing in the 1996 amendments to change its view on this
question, the FCC continued to assert jurisdiction over
pole attachments for these particular commingled services.
In re Implementation of Section 703(e) of the Telecommuni-
cations Act of 1996: Amendment of the Commission’s Rules
and Policies Governing Pole Attachments, 13 FCC Rcd.
6777 (1998). In the same order the FCC concluded further
that the amended Act covers attachments by wireless tele-
communications providers. “[T]he use of the word ‘any’

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precludes a position that Congress intended to distinguish
between wire and wireless attachments.” Id., at 6798.
Certain pole-owning utilities challenged the FCC’s order
in various Courts of Appeals. See 47 U. S. C. § 402(a) (1994
ed.); 28 U. S. C. § 2342 (1994 ed.). The challenges were con-
solidated in the Court of Appeals for the Eleventh Circuit,
see § 2112(a), which reversed the FCC on both points. 208
F. 3d 1263 (2000). On the question of commingled services,
the court held that the two specific rate formulas in 47
U. S. C. §§ 224(d)(3) and (e)(1) (1994 ed., Supp. V) narrow the
general definition of pole attachments. The first formula ap-
plies to “any pole attachment used by a cable television sys-
tem solely to provide cable service,” § 224(d)(3), and the sec-
ond applies to “pole attachments used by telecommunications
carriers to provide telecommunications services,” § 224(e)(1).
The majority concluded that attachments for commingled
services are neither, and that “no other rates are author-
ized.” 208 F. 3d, at 1276, n. 29. Because it found that nei-
ther rate formula covers commingled services, it ruled those
attachments must be excluded from the Act’s coverage.
On the wireless question, the majority relied on the statu-
tory definition of “utility”: “any person . . . who owns or con-
trols poles, ducts, conduits, or rights-of-way used, in whole
or in part, for any wire communications.” § 224(a)(1). The
majority concluded that the definition of “utility” informed
the definition of “pole attachment,” restricting it to attach-
ments used, at least in part, for wire communications. At-
tachments for wireless communications, it held, are excluded
by negative implication. Id., at 1274.
Judge Carnes dissented on these two issues. In his view,
§§ 224(a)(4) and (b) “unambiguously giv[e] the FCC regula-
tory authority over wireless telecommunications service and
Internet service.” Id., at 1281 (opinion concurring in part
and dissenting in part). We granted certiorari. 531 U. S.
1125 (2001).

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II
We turn first to the question whether the Act applies to
attachments that provide high-speed Internet access at the
same time as cable television, the commingled services at
issue here. As we have noted, the Act requires the FCC to
“regulate the rates, terms, and conditions for pole attach-
ments,” § 224(b) (1994 ed.), and defines these to include “any
attachment by a cable television system,” § 224(a)(4) (1994
ed., Supp. V). These provisions resolve the question.
No one disputes that a cable attached by a cable television
company, which provides only cable television service, is an
attachment “by a cable television system.” If one day its
cable provides high-speed Internet access, in addition to
cable television service, the cable does not cease, at that in-
stant, to be an attachment “by a cable television system.”
The addition of a service does not change the character of
the attaching entity—the entity the attachment is “by.”
And this is what matters under the statute.
This is our own, best reading of the statute, which we
find unambiguous. If the statute were thought ambiguous,
however, the FCC’s reading must be accepted nonetheless,
provided it is a reasonable interpretation. See Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837, 842–844 (1984). Respondents’ burden, then, is
not merely to refute the proposition that “any attachment”
means “any attachment”; they must prove also the FCC’s
interpretation is unreasonable. This they cannot do.
Some respondents now advance an interpretation of the
statute not presented to the Court of Appeals, or, so far as
our review discloses, to the FCC. They contend it is wrong
to concentrate on whose attachment is at issue; the question,
they say, is what does the attachment do? Under this ap-
proach, an attachment is only an attachment by a cable tele-
vision system to the extent it is used to provide cable televi-
sion. To the extent it does other things, it falls outside the
ambit of the Act, and respondents may charge whatever

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rates they choose. To make this argument, respondents rely
on a statutory definition of “cable system” (which the FCC
treats as synonymous with “cable television system,” see
47 CFR § 76.5(a) (2000)). The definition begins as follows:
“[T]he term ‘cable system’ means a facility, consisting of a
set of closed transmission paths and associated signal gen-
eration, reception, and control equipment that is designed
to provide cable service which includes video programming
and which is provided to multiple subscribers within a com-
munity.” 47 U. S. C. § 522(7) (1994 ed., Supp. V). The first
part of the definition would appear to cover commingled
services, but the definition goes on to exclude “a facility of a
common carrier . . . except that such facility shall be consid-
ered a cable system . . . to the extent such facility is used
in the transmission of video programming directly to sub-
scribers, unless the extent of such use is solely to provide
interactive on-demand services.” Ibid.
Respondents assert that “most major cable companies are
now common carriers [since they also provide] residential
and/or commercial telephone service.” Brief for Respond-
ents American Electric Power Service Corp. et al. 20. If so,
they contend, then for purposes of § 224(a)(4), a facility that
provides commingled cable television and Internet service
is a “cable television system” only “to the extent that” it
provides cable television.
Even if a cable company is a common carrier because it
provides telephone service, of course, the attachment might
still fall under the second half of the “pole attachments”
definition: “any attachment by a . . . provider of telecommuni-
cations service.” § 224(a)(4). This argument, and the re-
lated assertion that “most major cable companies are now
common carriers,” need not be considered by us in the first
instance, when neither the FCC nor the Court of Appeals
has had the opportunity to pass upon the points. There is a
factual premise here, as well as an application of the statute
to the facts, that the FCC and the Court of Appeals ought

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to have the opportunity to address in the first instance.
This does not leave the cases in doubt, however. Even if a
“cable television system” is best thought of as a certain
“facility” rather than a certain type of entity, respondents
still must confront the problem that the statute regulates
attachments “by” (rather than “of ”) these facilities. The
word “by” still limits pole attachments by who is doing the
attaching, not by what is attached. So even if a cable televi-
sion system is only a cable television system “to the extent”
it provides cable television, an “attachment . . . by a cable
television system” is still (entirely) an attachment “by” a
cable television system whether or not it does other things
as well.
The Court of Appeals based its ruling on a different the-
ory. The statute sets two different formulas for just and
reasonable rates—one for pole attachments “used by a cable
television system solely to provide cable service,” § 224(d)(3),
and one for those “used by telecommunications carriers to
provide telecommunications services,” § 224(e)(1). In a foot-
note, the Court of Appeals concluded without analysis that
“subsections (d) and (e) narrow (b)(1)’s general mandate to
set just and reasonable rates.” 208 F. 3d, at 1276, n. 29. In
its view, Congress would not have provided two specific rate
formulas, and yet left a residual category for which the FCC
would derive its own view of just and reasonable rates.
“The straightforward language of subsections (d) and (e) di-
rects the FCC to establish two specific just and reasonable
rates . . . ; no other rates are authorized.” Ibid.
This conclusion has no foundation in the plain language
of §§ 224(a)(4) and (b). Congress did indeed prescribe two
formulas for “just and reasonable” rates in two specific cate-
gories; but nothing about the text of §§ 224(d) and (e) (1994
ed. and Supp. V), and nothing about the structure of the Act,
suggest that these are the exclusive rates allowed. It is
true that specific statutory language should control more
general language when there is a conflict between the two.

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Here, however, there is no conflict. The specific controls but
only within its self-described scope.
The sum of the transactions addressed by the rate for-
mulas—§ 224(d)(3) (1994 ed., Supp. V) (attachments “used
by a cable television system solely to provide cable service”)
and § 224(e)(1) (attachments “used by telecommunications
carriers to provide telecommunications services”)—is less
than the theoretical coverage of the Act as a whole. Section
224(a)(4) reaches “any attachment by a cable television sys-
tem or provider of telecommunications service.” The first
two subsections are simply subsets of—but not limitations
upon—the third.
Likewise, nothing about the 1996 amendments suggests
an intent to decrease the jurisdiction of the FCC. To the
contrary, the amendments’ new provisions extend the Act
to cover telecommunications. As we have noted, commin-
gled services were covered under the statute as first
enacted, in the views of the FCC and the Court of Appeals
for the District of Columbia Circuit. Texas Util. Elec. Co.
v. FCC, 997 F. 2d 925 (1993). Before 1996, it is true, the
grant of authority in §§ 224(a)(4) and (b) was coextensive
with the application of the single rate formula in § 224(d).
The 1996 amendments limited § 224(d) to attachments used
by a cable television system “solely to provide cable service,”
but—despite Texas Util. Elec. Co.—did not so limit “pole
attachment” in § 224(a)(4). At this point, coextensiveness
ended. Cable television systems that also provide Internet
service are still covered by §§ 224(a)(4) and (b)—just as they
were before 1996—whether or not they are now excluded
from the specific rate formula of § 224(d); if they are, this
would simply mean that the FCC must prescribe just and
reasonable rates for them without necessary reliance upon a
specific statutory formula devised by Congress.
The Court of Appeals held that §§ 224(d) and (e) implicitly
limit the reach of §§ 224(a)(4) and (b); as a result, it was
compelled to reach the question of the correct categoriza-

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tion of Internet services—that is, whether these services are
“cable service,” § 224(d)(3), or “telecommunications services,”
§ 224(e)(1). It held that they are neither. By contrast, we
hold that §§ 224(d) and (e) work no limitation on §§ 224(a)(4)
and (b); for this reason, and because we granted certiorari
only to determine the scope of the latter provisions, we need
not decide the scope of the former.
The FCC had to go a step further, because once it decided
that it had jurisdiction over attachments providing commin-
gled services, it then had to set a just and reasonable rate.
Again, no rate challenge is before us, but we note that the
FCC proceeded in a sensible fashion. It first decided that
Internet services are not telecommunications services:
“Several commentators suggested that cable operators
providing Internet service should be required to pay
the Section 224(e) telecommunications rate. We dis-
agree. . . . Under [our] precedent, a cable television
system providing Internet service over a commingled
facility is not a telecommunications carrier subject to
the revised rate mandated by Section 224(e) by virtue
of providing Internet service.” 13 FCC Rcd., at 6794–
6795 (footnotes omitted).
After deciding Internet services are not telecommunications
services, the FCC then found that it did not need to decide
whether they are cable services:
“Regardless of whether such commingled services con-
stitute ‘solely cable services’ under Section 224(d)(3), we
believe that the subsection (d) rate should apply. If the
provision of such services over a cable television system
is a ‘cable service’ under Section 224(d)(3), then the rate
encompassed by that section would clearly apply. Even
if the provision of Internet service over a cable televi-
sion system is deemed to be neither ‘cable service’ nor
‘telecommunications service’ under the existing defi-
nitions, the Commission is still obligated under Sec-

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tion 224(b)(1) to ensure that the ‘rates, terms and condi-
tions [for pole attachments] are just and reasonable,’ . . .
[a]nd we would, in our discretion, apply the subsection
(d) rate as a ‘just and reasonable rate.’ ” Id., at 6795–
6796 (footnote omitted).
Respondents are frustrated by the FCC’s refusal to cate-
gorize Internet services, and doubly frustrated by the FCC’s
contingent decision that even if commingled services are
not “cable service,” those services nevertheless warrant
the § 224(d) rate. On the first point, though, decisionmakers
sometimes dodge hard questions when easier ones are dis-
positive; and we cannot fault the FCC for taking this ap-
proach. The second point, in essence, is a challenge to the
rate the FCC has chosen, a question not now before us.
We note that the FCC, subsequent to the order under re-
view, has reiterated that it has not yet categorized Internet
service. See, e. g., Pet. for Cert. in No. 00–843, p. 15, n. 4.
It has also suggested a willingness to reconsider its con-
clusion that Internet services are not telecommunications.
See, e. g., In re Inquiry Concerning High-Speed Access to
Internet Over Cable and Other Facilities, 15 FCC Rcd.
19287, 19294 (2000). Of course, the FCC has power to re-
consider prior decisions. The order under review in this
litigation, however, is both logical and unequivocal.
If the FCC should reverse its decision that Internet serv-
ices are not telecommunications, only its choice of rate, and
not its assertion of jurisdiction, would be implicated by
the reversal. In this suit, though, we address only whether
pole attachments that carry commingled services are sub-
ject to FCC regulation at all. The question is answered by
§§ 224(a)(4) and (b), and the answer is yes.
Even if the FCC decides, in the end, that Internet service
is not “cable service,” the result obtained by its interpreta-
tion of §§ 224(a)(4) and (b) is sensible. Congress may well
have chosen to define a “just and reasonable” rate for pure
cable television service, yet declined to produce a prospec-

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tive formula for commingled cable service. The latter might
be expected to evolve in directions Congress knew it could
not anticipate. As it was in Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984), the
subject matter here is technical, complex, and dynamic; and
as a general rule, agencies have authority to fill gaps where
the statutes are silent, id., at 843–844. It might have been
thought prudent to provide set formulas for telecommunica-
tions service and “solely cable service,” and to leave unmodi-
fied the FCC’s customary discretion in calculating a “just and
reasonable” rate for commingled services.
This result is more sensible than the one for which re-
spondents contend. On their view, if a cable company at-
tempts to innovate at all and provide anything other than
pure television, it loses the protection of the Pole Attach-
ments Act and subjects itself to monopoly pricing. 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 accel-
erate deployment of such capability by removing barriers
to infrastructure investment.” Pub. L. 104–104, Tit. VII,
§§ 706(a), (b), and (c)(1), 110 Stat. 153, note following 47
U. S. C. § 157 (1994 ed., Supp. V). This congressional policy
underscores the reasonableness of the FCC’s interpreta-
tion: Cable attachments providing commingled services come
within the ambit of the Act.
III
The second question presented is whether and to what ex-
tent the equipment of wireless telecommunications providers
is susceptible of FCC regulation under the Act. The Elev-
enth Circuit held that “the act does not provide the FCC
with authority to regulate wireless carriers.” 208 F. 3d, at
1275. All parties now agree this holding was overstated.

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“[T]o the extent a wireless carrier seeks to attach a wireline
facility to a utility pole . . . the wireline attachment is subject
to Section 224.” Brief for Respondents American Electric
Power Service Corp. et al. 31; see also Brief for Respondents
Atlantic City Electric Co. et al. 40; Brief for Repondent TXU
Electric Co. 18; Brief for Respondent Florida Power & Light
Co. 10–11. We agree, and we so hold.
The dispute that remains becomes a narrow one. Are
some attachments by wireless telecommunications provid-
ers—those, presumably, which are composed of distinctively
wireless equipment—excluded from the coverage of the Act?
Again, the dispositive text requires the FCC to “regulate the
rates, terms, and conditions for pole attachments,” § 224(b)
(1994 ed.), and defines these to include “any attachment by
a . . . provider of telecommunications service,” § 224(a)(4)
(1994 ed., Supp. V). “Telecommunications service,” in turn,
is defined as the offering of telecommunications to the public
for a fee, “regardless of the facilities used,” § 153(46). A pro-
vider of wireless telecommunications service is a “provider
of telecommunications service,” so its attachment is a “pole
attachment.”
Once more, respondents seek refuge in other parts of
the statute. A “utility” is defined as an entity “who owns
or controls poles, ducts, conduits, or rights-of-way used, in
whole or in part, for any wire communications.” § 224(a)(1).
The definition, though, concerns only whose poles are cov-
ered, not which attachments are covered. Likewise, the
rate formula is based upon the poles’ “usable space,” which
is defined as “the space above the minimum grade level
which can be used for the attachment of wires, cables, and
associated equipment,” § 224(d)(2) (1994 ed.). This defini-
tion, too, does not purport to limit which pole attachments
are covered.
In short, nothing in § 224(a)(1) or § 224(d)(2) limits
§ 224(a)(4) or § 224(b). Even if they did, moreover, respond-
ents still would need to confront the provision for “associ-

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ated equipment.” As noted above, respondents themselves
concede that attachments of wires by wireless providers of
telecommunications service are covered by the Act. See
supra, at 339–340. It follows, in our view, that “associated
equipment” which is indistinguishable from the “associated
equipment” of wire-based telecommunications providers
would also be covered. Respondents must demand a dis-
tinction between prototypical wire-based “associated equip-
ment” and the wireless “associated equipment” to which they
object. The distinction, they contend, is required by the
economic rationale of the Act. The very reason for the Act
is that—as to wires—utility poles constitute a bottleneck
facility, for which utilities could otherwise charge monopoly
rents. Poles, they say, are not a bottleneck facility for the
siting of at least some, distinctively wireless equipment, like
antennas. These can be located anywhere sufficiently high.
The economic analysis may be correct as far as it goes.
Yet the proposed distinction—between prototypical wire-
based “associated equipment” and the wireless “associated
equipment” which allegedly falls outside of the rationale
of the Act—finds no support in the text, and, based on our
present understanding of the record before us, appears
quite difficult to draw. Congress may have decided that the
difficulties of drawing such a distinction would burden the
orderly administration of the Act. In any event, the FCC
was not unreasonable in declining to draw this distinction;
and if the text were ambiguous, we would defer to its judg-
ment on this technical question.
IV
Respondents insist that “any attachment” cannot mean
“any attachment.” Surely, they say, the Act cannot cover
billboards, or clotheslines, or anything else that a cable
television system or provider of telecommunications service
should fancy attaching to a pole. Since the literal reading
is absurd, they contend, there must be a limiting principle.

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The FCC did not purport either to enunciate or to disclaim
a specific limiting principle, presumably because, in its view,
the attachments at issue here did not test the margins of
the Act. The term “any attachment by a cable television
system” covers at least those attachments which do in fact
provide cable television service, and “any attachment by
a . . . provider of telecommunications service” covers at least
those which in fact provide telecommunications. Attach-
ments of other sorts may be examined by the agency in the
first instance.
The attachments at issue in this suit—ones which provide
commingled cable and Internet service and ones which pro-
vide wireless telecommunications—fall within the heartland
of the Act. The agency’s decision, therefore, to assert juris-
diction over these attachments is reasonable and entitled to
our deference. The judgment of the Court of Appeals for
the Eleventh Circuit is reversed, and the cases are remanded
for further proceedings consistent with this opinion.
It is so ordered.
Justice O’Connor took no part in the consideration or
decision of these cases.
APPENDIX TO OPINION OF THE COURT
47 U. S. C. § 224. Pole attachments
(a) Definitions
As used in this section:
(1) The term “utility” means any person who is a local
exchange carrier or an electric, gas, water, steam, or other
public utility, and who owns or controls poles, ducts, con-
duits, or rights-of-way used, in whole or in part, for any wire
communications. Such term does not include any railroad,
any person who is cooperatively organized, or any person
owned by the Federal Government or any State.

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(2) The term “Federal Government” means the Govern-
ment of the United States or any agency or instrumentality
thereof.
(3) The term “State” means any State, territory, or pos-
session of the United States, the District of Columbia, or any
political subdivision, agency, or instrumentality thereof.
(4) The term “pole attachment” means any attachment by
a cable television system or provider of telecommunications
service to a pole, duct, conduit, or right-of-way owned or con-
trolled by a utility.
(5) For purposes of this section, the term “telecommuni-
cations carrier” (as defined in section 153 of this title) does
not include any incumbent local exchange carrier as defined
in section 251(h) of this title.
(b) Authority of Commission to regulate rates, terms, and
conditions; enforcement powers; promulgation of regulations
(1) Subject to the provisions of subsection (c) of this sec-
tion, the Commission shall regulate the rates, terms, and
conditions for pole attachments to provide that such rates,
terms, and conditions are just and reasonable, and shall
adopt procedures necessary and appropriate to hear and
resolve complaints concerning such rates, terms, and con-
ditions. For purposes of enforcing any determinations re-
sulting from complaint procedures established pursuant to
this subsection, the Commission shall take such action as
it deems appropriate and necessary, including issuing cease
and desist orders, as authorized by section 312(b) of this
title.
(2) The Commission shall prescribe by rule regulations to
carry out the provisions of this section.
(c) State regulatory authority over rates, terms, and con-
ditions; preemption; certification; circumstances constituting
State regulation
(1) Nothing in this section shall be construed to apply to,
or to give the Commission jurisdiction with respect to rates,
terms, and conditions, or access to poles, ducts, conduits, and

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rights-of-way as provided in subsection (f) of this section, for
pole attachments in any case where such matters are regu-
lated by a State.
(2) Each State which regulates the rates, terms, and con-
ditions for pole attachments shall certify to the Commission
that—
(A) it regulates such rates, terms, and conditions; and
(B) in so regulating such rates, terms, and conditions, the
State has the authority to consider and does consider the
interests of the subscribers of the services offered via such
attachments, as well as the interests of the consumers of the
utility services.
(3) For purposes of this subsection, a State shall not be
considered to regulate the rates, terms, and conditions for
pole attachments—
(A) unless the State has issued and made effective rules
and regulations implementing the State’s regulatory author-
ity over pole attachments; and
(B) with respect to any individual matter, unless the State
takes final action on a complaint regarding such matter—
(i) within 180 days after the complaint is filed with the
State, or
(ii) within the applicable period prescribed for such final
action in such rules and regulations of the State, if the pre-
scribed period does not extend beyond 360 days after the
filing of such complaint.
(d) Determination of just and reasonable rates; “usable
space” defined
(1) For purposes of subsection (b) of this section, a rate is
just and reasonable if it assures a utility the recovery of not
less than the additional costs of providing pole attachments,
nor more than an amount determined by multiplying the
percentage of the total usable space, or the percentage of
the total duct or conduit capacity, which is occupied by the
pole attachment by the sum of the operating expenses and

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actual capital costs of the utility attributable to the entire
pole, duct, conduit, or right-of-way.
(2) As used in this subsection, the term “usable space”
means the space above the minimum grade level which can
be used for the attachment of wires, cables, and associated
equipment.
(3) This subsection shall apply to the rate for any pole
attachment used by a cable television system solely to pro-
vide cable service. Until the effective date of the regula-
tions required under subsection (e) of this section, this sub-
section shall also apply to the rate for any pole attachment
used by a cable system or any telecommunications carrier
(to the extent such carrier is not a party to a pole attachment
agreement) to provide any telecommunications service.
(e) Regulations governing charges; apportionment of costs
of providing space
(1) The Commission shall, no later than 2 years after Feb-
ruary 8, 1996, prescribe regulations in accordance with this
subsection to govern the charges for pole attachments used
by telecommunications carriers to provide telecommunica-
tions services, when the parties fail to resolve a dispute over
such charges. Such regulations shall ensure that a utility
charges just, reasonable, and nondiscriminatory rates for
pole attachments.
(2) A utility shall apportion the cost of providing space
on a pole, duct, conduit, or right-of-way other than the usable
space among entities so that such apportionment equals
two-thirds of the costs of providing space other than the
usable space that would be allocated to such entity under
an equal apportionment of such costs among all attaching
entities.
(3) A utility shall apportion the cost of providing usable
space among all entities according to the percentage of us-
able space required for each entity.
(4) The regulations required under paragraph (1) shall be-
come effective 5 years after February 8, 1996. Any increase

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in the rates for pole attachments that result from the adop-
tion of the regulations required by this subsection shall be
phased in equal annual increments over a period of 5 years
beginning on the effective date of such regulations.
(f) Nondiscriminatory access
(1) A utility shall provide a cable television system or any
telecommunications carrier with nondiscriminatory access to
any pole, duct, conduit, or right-of-way owned or controlled
by it.
(2) Notwithstanding paragraph (1), a utility providing
electric service may deny a cable television system or any
telecommunications carrier access to its poles, ducts, con-
duits, or rights-of-way, on a non-discriminatory basis where
there is insufficient capacity and for reasons of safety, relia-
bility and generally applicable engineering purposes.
(g) Imputation to costs of pole attachment rate
A utility that engages in the provision of telecommuni-
cations services or cable services shall impute to its costs of
providing such services (and charge any affiliate, subsidiary,
or associate company engaged in the provision of such serv-
ices) an equal amount to the pole attachment rate for which
such company would be liable under this section.
(h) Modification or alteration of pole, duct, conduit, or
right-of-way
Whenever the owner of a pole, duct, conduit, or right-
of-way intends to modify or alter such pole, duct, conduit,
or right-of-way, the owner shall provide written notification
of such action to any entity that has obtained an attachment
to such conduit or right-of-way so that such entity may have
a reasonable opportunity to add to or modify its existing
attachment. Any entity that adds to or modifies its existing
attachment after receiving such notification shall bear a pro-
portionate share of the costs incurred by the owner in mak-
ing such pole, duct, conduit, or right-of-way accessible.
(i) Costs of rearranging or replacing attachment
An entity that obtains an attachment to a pole, conduit,
or right-of-way shall not be required to bear any of the costs

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of rearranging or replacing its attachment, if such rearrange-
ment or replacement is required as a result of an additional
attachment or the modification of an existing attachment
sought by any other entity (including the owner of such pole,
duct, conduit, or right-of-way).
Justice Thomas, with whom Justice Souter joins,
concurring in part and dissenting in part.
I join Parts I and III of the Court’s opinion because I
agree that the Pole Attachments Act, 47 U. S. C. § 224 (1994
ed. and Supp. V), grants the Federal Communications
Commission (FCC or Commission) jurisdiction to regulate at-
tachments by wireless telecommunications providers. The
Court’s conclusion in Part II of its opinion that the Act gives
the FCC the authority to regulate rates for attachments pro-
viding commingled cable television service and high-speed
Internet access may be correct as well.
Nevertheless, because the FCC failed to engage in rea-
soned decisionmaking before asserting jurisdiction over at-
tachments transmitting these commingled services, I cannot
agree with the Court that the judgment below should be
reversed and the FCC’s decision on this point allowed to
stand. Instead, I would vacate the Court of Appeals’ judg-
ment and remand the cases to the FCC with instructions
that the Commission clearly explain the specific statutory
basis on which it is regulating rates for attachments that
provide commingled cable television service and high-speed
Internet access. Such a determination would require the
Commission to decide at long last whether high-speed In-
ternet access provided through cable wires constitutes cable
service or telecommunications service or falls into neither
category.
I
As these cases have been presented to this Court, the dis-
pute over the FCC’s authority to regulate rates for attach-
ments providing commingled cable television service and
high-speed Internet access turns on one central question:

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whether 47 U. S. C. § 224(b)(1)’s general grant of authority
empowers the FCC to regulate rates for “pole attachments,”
§ 224(a)(4) (1994 ed., Supp. V), that are not covered by either
of the Act’s two specific rate methodologies, § 224(d) and
§ 224(e) (1994 ed. and Supp. V). Petitioners, including the
FCC, contend that § 224(b)(1) (1994 ed.) authorizes the Com-
mission to regulate rates for all “pole attachments” as that
term is defined in § 224(a)(4) (1994 ed., Supp. V). Respond-
ents, on the other hand, argue that the FCC may only regu-
late rates for attachments covered by one of the two specific
rate methodologies set forth in the Act, the position adopted
by the Court of Appeals below.
It is not at all clear, however, that the disputed attach-
ments at issue here—those providing both cable television
programming and high-speed Internet access—are attach-
ments for which neither of the Act’s two specific rate meth-
odologies applies. The FCC has made no determination
with respect to this issue that this Court (or any other court)
can review. Indeed, there is nothing in the record indicat-
ing whether any pole attachments currently exist that fall
within the terms of § 224(a)(4) yet are not covered by either
of the Act’s specific rate methodologies. Consequently, the
specific legal issue the Court chooses to address is, at this
time, nothing more than a tempest in a teapot.
The disputed attachments here provide two distinct
services: conventional cable television programming and
high-speed Internet access. No party disputes the FCC’s
conclusion that conventional cable television programming
constitutes cable service. See ante, at 333. Crucially, how-
ever, the FCC has made no determination as to the proper
statutory classification of high-speed Internet access using
cable modem technology. In fact, in asserting its authority
to regulate rates for attachments providing commingled
cable television service and high-speed Internet access, the
Commission explicitly declined to address the issue: “We
need not decide at this time . . . the precise category into
which Internet services fit.” In re Implementation of Sec-

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tion 703(e) of the Telecommunications Act of 1996: Amend-
ment of the Commission’s Rules and Policies Governing
Pole Attachments, 13 FCC Rcd. 6777, 6795 (1998). In their
petition for certiorari, the Government and the FCC ex-
plained that the FCC proceeded in this manner “because the
classification of cable Internet access as ‘cable service,’ ‘tele-
communications service,’ or some other form of service is
the subject of ongoing proceedings before the Commission
concerning issues outside the Pole Attachments Act,” and it
“ ‘d[id] not intend . . . to foreclose any aspect of the Commis-
sion’s ongoing examination of those issues.’ ” Pet. for Cert.
in No. 00–843, p. 5, n. 2 (quoting 13 FCC Rcd., at 6795).
The statutory scheme, however, does not permit the FCC
to avoid this question. None of the parties disputes that
the two specific rate methodologies set forth in the Act are
mandatory if applicable. If an attachment by a cable televi-
sion system is used solely to provide cable service, the rate
for that attachment must be set pursuant to the methodology
contained in § 224(d). See 47 U. S. C. § 224(d)(3). And, if an
attachment is used to provide telecommunications service,
the rate for that attachment must be set pursuant to the
methodology contained in § 224(e). As a result, before the
FCC may regulate rates for a category of attachments, the
statute requires the FCC to make at least two determina-
tions: whether the attachments are used “solely to provide
cable service” and whether the attachments are used to pro-
vide “telecommunications service.”
Here, however, the FCC has failed to take either necessary
step. For if high-speed Internet access using cable modem
technology is a cable service,1 then attachments providing
commingled cable television programming and high-speed
Internet access are used solely to provide cable service, and
the rates for these attachments must be regulated pursuant
to § 224(d)’s methodology. Or if, on the other hand, such In-
1 See, e. g., MediaOne Group, Inc. v. County of Henrico, 97 F. Supp. 2d
712, 715 (ED Va. 2000), aff ’d on other grounds, 257 F. 3d 356 (CA4 2001)
(concluding that cable modem service is a cable service).

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ternet access constitutes a telecommunications service,2 then
these attachments are used to provide telecommunications
service and must be regulated pursuant to § 224(e)’s rate
methodology.3
Only after determining whether either of the Act’s manda-
tory rate methodologies applies to particular attachments
and answering that question in the negative does the statute
allow the FCC to examine whether it may define a “just
and reasonable” rate for those attachments pursuant to
§ 224(b)(1). Had the FCC engaged in such reasoned deci-
sionmaking below and concluded that it had the authority to
regulate rates for attachments used to provide commingled
cable television service and high-speed Internet access even
though high-speed Internet access using cable modem tech-
nology constitutes neither cable service nor telecommunica-
tions service, then this Court would have been able to review
the Commission’s order in a logical manner. We first would
have asked whether the Commission had permissibly classi-
fied the services provided by these attachments. And, if we
answered that question in the affirmative, we would then
(and only then) have asked whether the FCC has the author-
ity under § 224(b)(1) to regulate rates for attachments where
Congress has not provided an applicable rate methodology.
Instead, the FCC asks this Court to sustain its authority
to regulate rates for attachments providing commingled
cable television programming and high-speed Internet ac-
cess, even though it has yet to articulate the specific statu-
tory basis for its authority to regulate these attachments.
Yet, as Justice Harlan noted some years ago: “Judicial review
of [an agency’s] orders will . . . function accurately and effica-
2 See, e. g., AT&T Corp. v. Portland, 216 F. 3d 871, 878 (CA9 2000) (con-
cluding that cable modem service is a telecommunications service).
3 Rates set pursuant to § 224(e)’s methodology are generally higher than
those set pursuant to § 224(d)’s methodology. See Brief for Petitioners
in No. 00–843, p. 24; Brief for Respondents Atlantic City Elec. Co. et al.
10, n. 2.

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ciously only if the [agency] indicates fully and carefully the
methods by which . . . it has chosen to act.” Permian Basin
Area Rate Cases, 390 U. S. 747, 792 (1968). Here, the FCC
obviously has fallen far short of this standard.
The FCC seems to hold open the following options: (a)
Rates for attachments providing commingled cable television
programming and high-speed Internet access may be regu-
lated pursuant to § 224(d)’s rate methodology; (b) rates for
these attachments may be regulated pursuant to § 224(e)’s
rate methodology; or (c) rates for these attachments may be
regulated under the FCC’s general authority to define “just
and reasonable” rates pursuant to § 224(b)(1). To be sure,
the Commission has rejected a fourth possible option ad-
vanced by respondents: that it lacks any authority to regu-
late rates for attachments providing commingled cable tele-
vision programming and high-speed Internet access. But if
the FCC wishes to regulate rates for these attachments, the
statute requires the Commission to do more. Eliminating
only one of four possible answers in this instance does not
constitute reasoned decisionmaking.
For these reasons, the FCC’s attempt to regulate rates for
attachments providing commingled cable television service
and high-speed Internet access while refusing to classify
the services provided by these attachments is “arbitrary,
capricious,” and “not in accordance with law.” 5 U. S. C.
§ 706(2)(A). I would therefore remand these cases to the
FCC for the Commission to identify the specific statutory
basis for its authority to regulate rates for attachments
providing commingled cable television programming and
high-speed Internet access: 47 U. S. C. § 224(d), § 224(e), or
§ 224(b)(1) (1994 ed. and Supp. V).
II
Notwithstanding the FCC’s failure to classify the services
provided by the attachments at issue in these cases, the
Court nonetheless concludes that the FCC’s analysis below

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was adequate. Proceeding from the premise that the Com-
mission in fact has determined that high-speed Internet ac-
cess using cable modem technology is not a telecommunica-
tions service, see ante, at 337, the Court finds that the
Commission, after reaching this conclusion, was not required
to determine whether the attachments here are used solely
to provide cable service. Even if the FCC had concluded
that these attachments are not used solely to provide cable
service, the Court notes that the FCC indicated it would
have used its power under § 224(b)(1) to apply § 224(d)’s
rate methodology regardless. See ante, at 337–338. Under
the Court’s reasoning, this is therefore a case of six of one, a
half dozen of another. Either the FCC must apply § 224(d)’s
methodology to attachments providing commingled cable
television programming and high-speed Internet access be-
cause such attachments are used solely to provide cable serv-
ice, see § 224(d)(3) (1994 ed., Supp. V), or the FCC has exer-
cised its power under § 224(b)(1) (1994 ed.) to regulate the
rates for these attachments and has chosen to “apply the
[§ 224(d)] rate as a ‘just and reasonable’ rate.” 13 FCC Rcd.,
at 6796. The problem with this position is twofold.
A
First, the FCC has not conclusively determined that high-
speed Internet access using cable modem technology is not
a telecommunications service. Admittedly, the FCC’s dis-
cussion of the topic in its order below was opaque.4 The
4 Residential high-speed Internet access typically requires two separate
steps. The first is transmission from a customer’s home to an Internet
service provider’s (ISP’s) point of presence. This service is generally pro-
vided by a cable or phone company over wires attached to poles, ducts,
conduits, and rights-of-way. The second is a service delivered by an ISP
to provide the connection between its point of presence and the Internet.
See Brief for United States Telecom Assn. et al. as Amici Curiae 6. The
Commission has classified the second step of this process, the service pro-
vided by an ISP, as an “information service.” See, e. g., In re Deployment
of Wireline Services Offering Advanced Telecommunications Capability,

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Commission, however, has since made its lack of a position
on the issue unambiguous.
The FCC has not represented to this Court that high-
speed Internet access provided through cable wires is not a
telecommunications service. To the contrary, it has made
its agnosticism on the topic quite clear. In its petition for
15 FCC Rcd. 385, 401 (1999). To date, however, the FCC has not classi-
fied the first step of this process in the cable context. Notably, when
high-speed Internet access is provided over phone lines, in what is gener-
ally known as DSL service, the FCC has classified the first step of this
process as involving the provision of a telecommunications service. See
id., at 402–403.
The FCC’s order below reflected the Commission’s position. In its
order, the Commission never specifically addressed whether transmission
over cable wires from a customer’s residence to an ISP’s point of presence
constitutes a telecommunications service. Instead, the FCC merely re-
ferred to its earlier decision that ISPs do not provide a telecommunica-
tions service under the 1996 Telecommunications Act. It then reasoned
that “[u]nder this precedent, a cable television system providing Internet
service over a commingled facility is not a telecommunications carrier sub-
ject to the revised rate mandated by Section 224(e) by virtue of providing
Internet service.” In re Implementation of Section 703(e) of the Tele-
communications Act of 1996: Amendment of the Commission’s Rules and
Policies Governing Pole Attachments, 13 FCC Rcd. 6777, 6794–6795
(1998). To be sure, to the extent that a cable television system actually
provides Internet service like any other ISP it is undoubtedly providing
an “information service” under the Commission’s precedents. The Com-
mission’s analysis, however, failed to address the crucial question: What
type of service is provided when cable wires are used to transmit informa-
tion between a customer’s home and an ISP’s point of presence?
It is for this reason perhaps that the Commission explained in its order
below that it was reviewing the extent to which its “definition[s] of ‘tele-
communications’ and ‘telecommunications service’ . . . [were] consistent
with the . . . Act” and did “not intend, in this proceeding, to foreclose
any aspect of the Commission’s ongoing examination of those issues.” Id.,
at 6795. Crucially, when the FCC released that “review,” it expressly
stated “no view . . . on the applicability of [its prior] analysis to cable
operators providing Internet access service,” and noted that “we have not
yet established the regulatory classification of Internet services provided
over cable television facilities.” In re Federal-State Joint Board on Uni-
versal Service, 13 FCC Rcd. 11501, 11535, n. 140 (1998).

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certiorari, for instance, the FCC complained that the Court
of Appeals “mistakenly felt compelled to address whether
a cable company’s provision of Internet access is properly
characterized as a ‘cable service,’ a ‘telecommunications
service,’ or an ‘information service.’ ” Pet. for Cert. in
No. 00–843, p. 15, n. 4. It then clearly stated, “To date, the
FCC has taken no position on that issue.” Ibid. (emphasis
added). The FCC not only repeated this contention in its
merits brief, see Brief for Petitioners in No. 00–843, p. 30,
but also explicitly asked this Court not to evaluate whether
high-speed Internet access using cable modem technology is
“a ‘cable service,’ a ‘telecommunications service,’ or some
other kind of service,” ibid., even if we concluded such an
inquiry was necessary to determine whether the FCC could
regulate rates for attachments providing commingled cable
television programming and high-speed Internet access.
The reason it gave for this request was simple: The FCC
should be allowed to “address the characterization issue in
the first instance.” Id., at 31 (emphasis added).
Outside of this litigation, the FCC has also unambiguously
indicated that it holds “no position” as to whether high-speed
Internet access using cable modem technology constitutes
a telecommunications service. For example, in an amicus
curiae brief submitted to the United States Court of Appeals
for the Ninth Circuit, the FCC stated: “To date, the Commis-
sion has not decided whether broadband capability offered
over cable facilities is a ‘cable service’ under the Commu-
nications Act, or instead should be classified as ‘telecom-
munications’ or as an ‘information service.’ The answer to
this question is far from clear.” Brief for FCC as Amicus
Curiae in AT&T Corp. v. Portland, No. 99–35609 (CA9),
p. 19.5 Just last year, in fact, the Commission issued a notice
5 The FCC’s amicus curiae brief in AT&T Corp. v. Portland is com-
pletely inconsistent with the Court’s position that the FCC has not decided
whether high-speed Internet access using cable modem technology consti-
tutes cable service but has concluded that such Internet access is not a

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of inquiry seeking comment on the proper statutory classifi-
cation of high-speed Internet access using cable modem tech-
nology. See In re Inquiry Concerning High-Speed Access
to Internet Over Cable and Other Facilities, 15 FCC Rcd.
19287 (2000). In this notice of inquiry, the FCC specifically
sought comment on, among other issues, whether such In-
ternet access “is a telecommunications service,” see id., at
19294, at no point indicating that the FCC had ever taken
any position on the issue.
The Court’s conclusion that the FCC has already decided
that high-speed Internet access using cable modem technol-
ogy is not a telecommunications service thus stands in stark
contrast to the FCC’s own view of the matter. “[T]he Com-
mission has not determined whether Internet access via
cable system facilities should be classified as a ‘cable service’
subject to Title VI of the Act, or as a ‘telecommunications’
or ‘information service’ subject to Title II. There may well
come a time when it will be necessary and useful from a
policy perspective for the Commission to make these legal
determinations.” In re Applications for Consent to the
Transfer of Control of Licenses and Section 214 Authoriza-
tions from MediaOne Group, Inc., to AT&T Corp., 15 FCC
Rcd. 9816, 9872 (2000) (footnote omitted).
The Court, however, does not dispute that reasoned deci-
sionmaking required the FCC to make the “legal determina-
tion” whether high-speed Internet access using cable modem
technology constitutes a telecommunications service nearly
four years ago when the Commission asserted its authority
telecommunications service. The FCC’s brief questions whether the pro-
vision of Internet access through a cable modem is a “cable service” with-
out taking a definitive position on the question. Brief for FCC as Amicus
Curiae in No. 99–35609 (CA9), pp. 19–26. The FCC then observes, “[O]n
a conceptual level, an argument can be made that Internet access is more
appropriately characterized as an information or telecommunications serv-
ice rather than a cable service.” Id., at 26. The Commission then notes,
however, that it “has not yet conclusively resolved the issue.” Ibid.

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to regulate rates for attachments providing commingled
cable television programming and high-speed Internet ac-
cess. Instead, the Court mistakenly concludes that the
Commission has reached a decision on the issue. In the
Court’s view, the FCC’s repeated statements that it has not
determined whether high-speed Internet access using cable
modem technology constitutes a telecommunications service
only reflect the “[Commission’s] willingness to reconsider its
conclusion that Internet services are not telecommunica-
tions.” Ante, at 338. The relevant issue here, however, is
not whether Internet service is a telecommunications serv-
ice. Rather, it is whether high-speed Internet access pro-
vided through cable wires constitutes a telecommunications
service. The two questions are entirely distinct, see n. 4,
supra, and, as shown above, the FCC has never answered
the latter question and has indicated as much no less than
six times in recent years.6 These cases therefore should be
remanded to the FCC on this basis alone.
B
Second, even if the FCC had determined that high-speed
Internet access provided through cable wires does not con-
stitute a telecommunications service, these cases still would
need to be remanded to the FCC. In order to endorse the
FCC’s primary argument that § 224(b)(1) provides the Com-
mission with the authority to regulate rates for attachments
not covered by either of the Act’s specific rate methodologies,
§§ 224(d) and 224(e), it seems necessary, as a matter of logic,
for such attachments to exist. But as both the FCC and the
6 See Pet. for Cert. in No. 00–843, p. 15, n. 4; Brief for Petitioners in
No. 00–843, at 30; Brief for FCC as Amicus Curiae in No. 99–35609 (CA9),
at 19–26; In re Federal-State Joint Board on Universal Service, 13 FCC
Rcd., at 11535, n. 140; In re Inquiry Concerning High-Speed Access to
Internet Over Cable and Other Facilities, 15 FCC Rcd. 19287, 19294
(2000); In re Applications for Consent to the Transfer of Control of Li-
censes and Section 214 Authorizations from MediaOne Group, Inc., to
AT&T Corp., 15 FCC Rcd. 9816, 9872 (2000).

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Court admit, the attachments here very well may be ad-
dressed by one of the Act’s rate formulas. Moreover, nei-
ther the FCC nor the Court advances a single example of
any attachment that is a covered “pole attachment” under
the definition provided in § 224(a)(4) (1994 ed., Supp. V) but is
not covered by either of the Act’s specific rate methodologies.
This obviously suggests a dilemma: If all attachments cov-
ered by the Act are in fact addressed by the Act’s specific
rate methodologies, then the coverage of § 224(a)(4) is not
greater than the sum of §§ 224(d) and (e), and the FCC has
no residual power to define “just and reasonable” rates for
attachments pursuant to § 224(b)(1) (1994 ed.). Yet the
Court affirms that the FCC indeed possesses just such
authority.
Unable to provide a single example of an attachment not
addressed by either of the Act’s specific rate methodologies,
the most the Court can argue is that “[t]he sum of the trans-
actions addressed by the rate formulas . . . is less than the
theoretical coverage of the Act as a whole.” Ante, at 336
(emphasis added). The Court, though, offers no reasoning
whatsoever in support of this observation, nor does it have
any basis in the record.
Leaving aside that which may or may not be theoretically
possible, I do not have a view at the present time as to
whether any attachments exist that are covered “pole at-
tachments” under the Act, see § 224(a)(4) (1994 ed., Supp. V),
but do not fall within the ambit of § 224(d) or § 224(e) (1994
ed. and Supp. V).7 I do question, however, whether Con-
7 Two types of attachments are covered by § 224(a)(4) (1994 ed., Supp. V):
those “by a cable television system” and those by a “provider of telecom-
munications service.” Rates for attachments used to provide telecommu-
nications service are covered by § 224(e)’s rate methodology regardless of
whether these attachments are also used to provide cable service and/or
other types of service as well. This is because § 224(e), unlike § 224(d)(3),
does not contain the restriction that attachments must be used “solely” to
provide a particular type of service for its methodology to apply. And
rates for attachments used solely to provide cable service are regulated
pursuant to § 224(d)’s methodology. See § 224(d)(3). As a result, the only

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gress contemplated the existence of such attachments. Be-
fore 1996, the parties agree that the FCC did not pos-
sess any general authority to define “just and reasonable”
rates for attachments pursuant to § 224(b)(1); rates for all
attachments were set pursuant to the formula contained in
§ 224(d).8 And if Congress in 1996 intended to transform
§ 224(b)(1) into a provision empowering the FCC to define
“just and reasonable” rates for attachments, it did so in an
odd manner: The 1996 amendments to the Act did not change
a single word in the relevant statutory provision, and the
legislative history contains nary a word indicating that Con-
gress intended to take this step.9
Congress may have believed that attachments were al-
ways used to provide cable service and/or telecommuni-
cations service and then taken great care to ensure that
specified rate methodologies covered all attachments provid-
ing each of these services and both of these services.10 In
“pole attachments,” as that term is defined in the Act, that would appear
to fall outside of the Act’s two specified rate methodologies would be any
attachments used to provide only cable service and an additional type of
service other than telecommunications service.
8 For this reason, the Court’s reference to “the FCC’s customary discre-
tion in calculating a ‘just and reasonable’ rate for commingled services” is
rather misleading. Ante, at 339 (emphasis added). Prior to 1996, the
FCC clearly did not enjoy “discretion” in calculating “just and reasonable”
rates for any regulated attachments.
9 See H. R. Rep. No. 104–204, pp. 220–221 (1996).
10 While no reference is made in either the text of the Act or the legisla-
tive history to attachments providing any services beyond cable service
and telecommunications service, the broader Telecommunications Act of
1996 does define such a third category of services: “information services.”
The statute defines “information service” as “the offering of a capability
for generating, acquiring . . . , or making available information via tele-
communications.” 110 Stat. 59, 47 U. S. C. § 153(20) (1994 ed., Supp. V)
(emphasis added). Given this definition, amicus curiae Earthlink, Inc.,
argues that “it is logically, technically, and legally impossible for an infor-
mation service that is offered to the public for a fee to exist without an
underlying telecommunications service. Quite simply, the only way that
an information service can reach the public is over a telecommunications

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this vein, Congress in 1996 provided a new rate methodology
for the new category of attachments added to the Act,11 see
§ 224(e), and required that the old rate methodology be ap-
plied to the new category of attachments until regulations
implementing the new rate methodology for these attach-
ments could be promulgated, see § 224(d)(3).
It is certainly possible that Congress, in fact, has not pro-
vided an applicable rate methodology for all attachments
covered by § 224(a)(4). Knowing the size and composition of
the universe of attachments not addressed by the Act’s two
specific rate methodologies, however, would be extremely
useful in evaluating the reasonableness of the FCC’s position
that it may regulate rates for those attachments. So in the
complete absence of evidence concerning whether any pole
attachments actually exist that are not covered by either of
the Act’s two specific rate methodologies, my position is sim-
ple: It is not conducive to “accurate” or “efficacious” judicial
review to consider in the abstract whether the FCC has been
given the authority to regulate rates for these “theoretical”
attachments. See Permian Basin Area Rate Cases, 390
U. S., at 792. This is especially true given that the unusual
posture of these cases is entirely the result of the FCC’s
failure to engage in reasoned decisionmaking below. See
Part I, supra.
III
For many of the same reasons given by the Court,
I believe it is likely that the FCC, at the end of the day,
service.” Brief for Earthlink, Inc., as Amicus Curiae 24. If Earthlink’s
position is correct, then this suggests that attachments used to provide an
information service may always also provide a telecommunications service
and would thus be regulated pursuant to § 224(e)’s methodology.
11 Prior to 1996, the Act only granted the FCC jurisdiction to regulate
one category of attachments, those by a cable television system. See 47
U. S. C. § 224(a)(4) (1994 ed.). In 1996, however, Congress expanded the
scope of the Act to cover attachments by providers of telecommunication
service as well. See Telecommunications Act of 1996, 47 U. S. C. § 224
(1994 ed., Supp. V).

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has the authority to regulate rates for attachments providing
commingled cable television programming and high-speed
Internet access. Prior to 1996, the Act was interpreted to
grant the FCC such broad authority, see Texas Util. Elec.
Co. v. FCC, 997 F. 2d 925, 929 (CADC 1993), and there is no
clear indication in either the text of the 1996 amendments
to the Act or the relevant legislative history that Congress
intended to take this power away from the FCC.
Moreover, such an interpretation of the 1996 amendments
to the Act would be in substantial tension with two congres-
sional policies underlying the Telecommunications Act of
1996. First, Congress directed the FCC to “encourage the
deployment” of high-speed Internet capability and, if neces-
sary, to “take immediate action to accelerate deployment of
such capability by removing barriers to infrastructure in-
vestment.” See §§ 706(a), (b), and (c)(1), 110 Stat. 153, note
following 47 U. S. C. § 157 (1994 ed., Supp. V). And second,
Congress declared that “[i]t is the policy of the United
States . . . to promote the continued development of the
Internet and other interactive computer services and other
interactive media.” § 509, 47 U. S. C. § 230(b)(1). Needless
to say, withdrawing the Act’s rate protection for the attach-
ments of those cable operators providing high-speed Internet
access through their wires and instead subjecting their at-
tachments to monopoly pricing would appear to be funda-
mentally inconsistent with encouraging the deployment of
cable modem service and promoting the development of the
Internet.
That the FCC may have reached a permissible conclusion
below, however, does not excuse its failure to engage in rea-
soned decisionmaking and does not justify the Court’s deci-
sion to allow the Commission’s order to stand.12 If the FCC
12 Indeed, to the extent that the FCC holds open the possibility that
high-speed Internet access using cable modem technology is a telecommu-
nications service, its decision to regulate rates for the disputed attach-
ments pursuant to § 224(d)’s rate methodology may result in utilities re-

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is to regulate rates for attachments providing commingled
cable television programming and high-speed Internet ac-
cess, it is required to determine whether high-speed Internet
access provided through cable wires is a cable service or tele-
communications service or falls into neither category. See
Part I, supra. The Commission does not claim to have
taken this step. As a result, the judgment of the Court of
Appeals should be vacated, and the cases should be re-
manded to the FCC with instructions that the Commission
identify the specific statutory basis on which it believes it is
authorized to regulate rates for attachments used to provide
commingled cable television programming and high-speed
Internet access: § 224(d), § 224(e), or § 224(b)(1).
For all of these reasons, I respectfully dissent from
Parts II and IV of the Court’s opinion.
ceiving a rate that is not “just and reasonable.” This is because rates
calculated pursuant to § 224(e)’s methodology are generally higher than
those calculated pursuant to § 224(d)’s methodology. See n. 3, supra.