On Monday, October 7, 2013, the Supreme Court of the United States (“Supreme Court”) denied a petition for certiorari challenging a U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) decision that upheld an April 2011 Federal Communications Commission (“FCC”) order revising the FCC’s previous interpretation of Section 224 of the Communications Act of 1934, which regulates pole attachment rates. The FCC’s new interpretation limits the price that electric utility companies can charge telecommunications companies to hang wires and other equipment from utility poles. The Supreme Court did not state its reasons for denying the petition.
In a decision issued on February 26, 2013, the D.C. Circuit upheld the FCC’s interpretations that: (1) certain local telephone companies, defined as incumbent local exchange carriers (“ILECs”), are “providers of telecommunication services,” and therefore eligible for the FCC to regulate their pole attachment rates under Section 224; (2) the FCC may create rate parity between telecommunication providers and cable companies by limiting the pole attachment rate utilities can charge telecommunication providers in a manner comparable to the lower pole attachment rates charged to cable providers; and (3) the refund period for overcharges can be based on the applicable statute of limitations, rather than the date that an overcharge complaint is filed (see March 1, 2013 edition of the WER).
In their unsuccessful petition for certiorari to the Supreme Court, the petitioning electric public utility companies argued that by expressly excluding ILECs from the 1978 Pole Attachments Act’s definition of “telecommunications carrier,” Congress intended to exclude attachments by ILECs to the poles of other utilities from the protections of the Act. The 1978 Pole Attachment Act implemented Section 224 of the Communications Act of 1934, establishing upper and lower limits for pole attachment rates that cable companies must pay, and granted the FCC the authority to regulate just and reasonable rates, terms, and conditions. Petitioners further asserted that the FCC failed to provide a reasoned justification for re-interpreting the 1978 Pole Attachments Act to extend its protections to attachments by ILECs to the poles of other utilities.