# Amicus Curiae Brief — National Cable & Telecommunications Ass'n v. Gulf Power Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0432%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 947

## Text

1

APR 6 2el @ | eee
Nos. 2 and 00-843
!
Supreme Court of the Anited

FEDERAL COMMUNICATIONS COMMISSION, ef ai.,

Petitioners,
Vv.

GULF POWER COMPANY, et ai.,

Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF OF EARTHLINK, INC. AS AMICUS CURIAE
IN SUPPORT OF NEITHER PARTY

DAVE BAKER

Vice President

Law and Public Policy
EARTHLINK, INC.

1430 West Peachtree Street
Atlanta, GA 30309

(404) 815-0770

* Counsel of Record

JOHN W. BUTLER *

EARL W. COMSTOCK
HEATHER M. SPRING

SHER & BLACKWELL

1850 M Street, NW, Ste. 900
Washington, D.C. 20036
(202) 463-2500

Counsel for EarthLink, Inc.

eee
WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

TABLE OF CONTENTS

INTEREST OF AMICUS EARTHLINK, INC...............
SUMMARY OF ARGUMENT ............ccccscssssssseesersesees
Te

A. The Court Of Appeals Properly Rejected The
Commission’s Claim That It Could Disregard
Subsections (d) and (e) Of Section 224 .............

B. Internet Access Service Is Not A “Cable
Service,” And The Entities That Seek Attach-
ments Do Not Operate “Cable Television
Systems” When They Provide Internet Access
rrr haccuaitcintenescstibiidaridenindnsaninnpsidiicniaatiemeetinaiain

C. The Pole Attachments At Issue Are Used To
Provide A Telecommunications Service Under
The Plain Language Of The Statute And The
Commission’s Longstanding Precedent.............

1. The Communications Act Analysis .............

a. Internet Access Service Is Itself An
“Information Service” ..............cccceeseeeeees

b. Information Services Such As Internet
Access Are Delivered Via Telecom-
ETS ae Ca

c. The Telecommunications Used To
Deliver The Information Service
Known As Internet Access Is Offered
To The Public For A Fee And Is Thus
A Telecommunications Service .............

(i)

18

18

ii
TABLE OF CONTENTS—Continued
Page

2. Twenty Years Of Commission Precedent
Holds That Information Services Offered
To The Public Are Always Delivered
Using A Telecommunications Service......... 22

CONCLUSION ..........cscccsssseseeeeseeeeeeesernnensenneseenneenenneees 29

TABLE OF AUTHORITIES
CASES Page
AT&T Corp. v. City of Portland, 216 F.3d 871
SY eee brricnscnsscsvesnumecvenssensenesoesssnse 9, 10, 14, 26
Chevron USA., Inc. v. Natural Resources
~ Defense Council, Inc., 467 U.S. 837 (1984)...... 4
City of Dallas, Texas v. F.C.C., 165 F.3d 341
STE GI rtnstisensenesenenssesenssesssceuersesnscseses 11,29
Gulf Power Co. v. F.C.C., 208 F.3d 1263 (11th
Ee passim
MediaOne Group, Inc. v. County of Henrico, 97
F, Supp.2d 712 (E.D. Va. 2000) .0.........ccccceceeeees 10
Morton v. Ruiz, 415 U.S. 199 (1974) 0... ..cccccceeeeeee 11
Nat'l Assoc’n of Regulatory Utility Comm'rs v.
F.C.C., 525 F.2d 630 (D.C. Cir. 1976) .............. 20
Nat'l Assoc’n of Regulatory Utility Comm'rs v.
F.C.C., 553 F.2d 601 (D.C. Cir. 1976) .............. 28
Texas Utilities Electric Co. v. F.C.C., 997 F.2d
I nica ceaesrenesnsgusnesnncscscnssses 12, 13
Virgin Islands Telephone Corp. v. F.C.C., 198
Pe Ee ics Gell BOP ccccccccccccsscscescscscssessccees 20
AGENCY DECISIONS
Filing and Review of Open Network Architecture
Plans, 4 F.C.C.R. 1 (1988),.......:cccccccceseeeeeeeeeeeeees 24
In the Matter of Amendment of Section 64.702 of
the Commission's Rules and Regulations
(Second Computer Inquiry), Final Decision,
77 F.C.C.2d 384 (1980) ......cccccceeeeeee 21, 22, 23, 24, 27
In the Matter of Applications for Consent to the
Transfer of Control of Licenses and Section
214 Authorizations from MediaOne Group,
Inc. To AT&T Corp., Memorandum Opinion
and Order, 15 F.C.C.R. 9816 (2000).................. 3

iV
TABLE OF AUTHORITIES-—Continued

Page
In the Matter of Applications for Consent to the
Transfer of Control of Licenses and Section
214 Authorizations from Tele-Communica-
tions, Inc. To AT&T Corp., Memorandum
Opinion and Order, 14 F.C.C.R. 3160 (1999) ... 3
In the Matter of Computer Ill Further Remand
Proceedings: Bell Operating Company Provi-
sion of Enhanced Services, 1998 Biennial
Regulatory Review—Review of Computer Ill
and ONA Safeguards and Requirements, 13
peed FT | 23
In the Matter of Deployment of Wireline Services
Offering Advanced Telecommunications Capa-
bility, Order on Remand, 15 F.C.C.R. 385
ee 18, 25
In the Matter of Federal-State Joint Board on
Universal Service, Report To Congress, 13
jes Bi) fT, 17, 18, 21, 23
In the Matter of Implementation of Section
703(e) of the Telecommunications Act of 1996,
Amendment of the Commission’s Rules and
Policies Governing Pole Attachments, Report
and Order, 13 F.C.C.R. 6777 (1998)........ccc0eee0e+ passim
In the Matter of Implementation of Section 703 of
the Telecommunications Act of 1996, Amend-
ments and Additions to the Commis-
sion’s Rules Governing Pole Attachments, 11
ee BO ee 16
In the Matter of Implementation of the Local
Competition Provisions in the Telecommun-
ications Act of 1996, 11 F.C.C.R. 15499

v

TABLE OF AUTHORITIES—Continued

In the Matter of Independent Data Commu-
nications Manufacturers’ Assoc’n, Inc.,
Petition for Declaratory Ruling That AT&T's
Frame Relay Service is a Basic Service,
Memorandum Opinion and Order, 10 F.C.C.R.

Sy Weare sinsciicteieciniensnsinsndidinstuasiieiinsdieteaiaenites 26, 27

In the Matter of Internet Ventures, Inc. and
Internet On-Ramp, Inc. Petition for Declara-
tory Ruling, Memorandum Opinion and Order,
EL 11

In the Matter of Policy and Rules Concerning the
Interstate, Interexchange Marketplace, Report
and Order, CC Docket Nos. 96-61, 98-183

[Fonts UD aT tcencniceenntinsncdinenssnemssneatinaitaseeassitiaes 21

STATUTES

ec ae e IEE passim

al eS ET 3

al en ED 3

ode passim

kf ee 11

lp a aT 9,11

Te 3
REGULATIONS

ee a 10, 11, 12, 13

i | —_ C 15
MISCELLANEOUS

In the Matter of Implementation of Section
703(e) of the Telecommunications Act of 1996,
C.S. Docket No. 97-151, Comments of NCTA
a ee NE ciceiiiieieietcieceinaniesiceiantarineiasnicitiiniin 12

vi
TABLE OF AUTHORITIES—Continued

Page
Notice of Inquiry Concerning High-Speed Access
To the Internet Over Cable And Other
Facilities, GN Docket No. 00-185 (2000) ......... 3
In the Matter of Policy and Rules Concerning the
Interstate, Interexchange Marketplace, Further
Notice of Proposed Rulemaking, 13 F.C.C.R.
21531 (199) ....ccccccccesscrcccccscccseccsccccsocsssscoosonsoooes 28, 29
Update and Refresh Record on Computer Ill
Requirements, 66 Fed. Reg. 15064 (2001)......... 23

IN THE
Supreme Court of the Anited States

FEDERAL COMMUNICATIONS COMMISSION, ef ai.,
Petitioners,
Vv.

GULF POWER COMPANY, et ai.,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF OF EARTHLINK, INC. AS AMICUS CURIAE
IN SUPPORT OF NEITHER PARTY

INTEREST OF AMICUS EARTHLINK, INC. '

EarthLink, Inc. (“EarthLink”), having obtained the written
consent of the parties pursuant to Rule 37.3 of the Rules of
this Court,” submits this brief as amicus curiae. EarthLink is
the second largest Internet service provider (“ISP”) in the
nation. EarthLink is the largest ISP that is not controlled by or
under common ownership with a cable television company.
The first question on which certiorari was granted—the scope
of the authority of the Federal Communications Commission
(“FCC” or “Commission”) under section 224 of the

' In accordance with the Court's Rule 37.6, EarthLink and its counsel
certify that no counsel for a party authored this brief in whole or in part
and that no person or entity other than EarthLink made any monetary
contribution to the preparation or submission of this brief.

Fhe consents have been filed with the Clerk with this brief.

2

Communications Act of 1934° to regulate the rates for pole
attachments made by cable companies that offer Internet
access service—is of critical interest to EarthLink for two
reasons.

First, to the extent that EarthLink is able to purchase from
cable companies transmission services that EarthLink may
use to deliver its Internet access services to consumers, the
price that EarthLink will pay for such transmission will
depend in part on how much a cable company may have to
pay to a utility to attach its cables to the utility’s poles.
Second, and ultimately of much greater consequence, the
proper application of section 224 to pole attachments used by
cable companies to deliver Internet access services to
consumers will require that the Court decide whether such
attachments are used in the provision of “cable service” or
“telecommunications service.” 7

Because the statutory definitions that control that decision
apply to the entire Communications Act, not just section 224,
how the statutory classification question is answered will
determine not only the applicable rate for pole attachments,
but also whether ISPs such as EarthLink, which do not have
their own transmission facilities, will be able to purchase use
of transmission facilities from cable operators. The reason
that access to transmission services is implicated by the

> The Communications Act of 1934 is codified generally at 47 U.S.C.
§§ 151 et seg. There are numerous references in the record to the “Pole
Attachments Act.” Section 224 (Regulation of Pole Attachments) was
added to the Communications Act of 1934 by section 6 of the
Communications Act Amendments of 1978, P.L. 95-234, 92 Stat. 35,
which also amended other parts of the Communications Act.
Accordingly, there is no “Pole Attachments Act,” and when EarthLink
speaks of the “Act” or the “Communications Act,” it means the
Communications Act of 1934, as amended. The point is not purely
semantic, because the statutory terms discussed in the analysis below
apply to the entire Act, not just section 224. See 47 U.S.C. § 153 (“For
the purposes of this Act, unless the context otherwise requires — . . . .”).

3

court’s resolution of the statutory classification issue is that
providers of telecommunications services are required under
sections 201 and 202 of the Communications Act to sell their
teiecommunications Services on nondiscriminatory terms to
all qualified buyers.‘ 47 U.S.C. §§ 201, 202. Providers of
cable services are not subject to the same obligation.
47 U.S.C. § 541(c).

SUMMARY OF ARGUMENT

Petitioners FCC and the National Cable Television
Association, Inc. (“NCTA”) have presented the issue of the
Commission’s authority to regulate pole attachments for

* As the power utility parties note in their Brief in Opposition to the
petitions for certiorari, the FCC has requested and received comments on
the question of whether transmission services used by cable companies to
provide Internet access constitute “telecommunications services.” See
Appendix to Brief In Opposition (FCC Notice of Inquiry Concerning
High-Speed Access to the Internet Over Cable and Other Facilities, GN
Docket No. 00-185 (2000)). The Commission has issued no order in that
docket. The issue of ISP access to cable transmission services has also
been raised in earlier Commission proceedings, but the Commission has
refused to address it. See, e.g., In the Matter of Applications for Consent
to the Transfer of Control of Licenses and Section 214 Authorizations
from MediaOne Group, Inc. to AT&T Corp., Memorandum Opinion and
Order, 15 F.C.C.R. 9816, 9872 (2000) (“{T]}he Commission 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 Il. 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.”). See
also In the Matter of Applications for Consent to the Transfer of Control
of Licenses and Section 214 Authorizations from Tele-Communications,
Inc. to AT&T Corp., Memorandum and Order, 14 F.C.C.R. 3160, 3201,
3207 (1999). The fact that the Commission has had squarely presented to
it the issue of the proper classification of cable-based transmission
services used to deliver Internet access but has consciously declined to
address it makes somewhat hollow the Commission’s request that the
Court remand that issue to the Commission if the Court disagrees with the
outcome below. See Commission Reply To Brief In Opposition at 5.

4

cable facilities used to transmit Internet access services as one
that turns on a plain reading of sections 224(a)(4) and
224(b)(1). See, e.g., Commission Petition at 12. The electric
utility respondents, on the other hand, contend that resolution
of the first issue upon which certiorari was granted requires
that the Court decide whether pole attachments used for cable
facilities over which Internet access services are transmitted
are used to provide “cable service” or “telecommunications
service.” Brief in Opposition at 7. EarthLink agrees with
respondents that determining whether the Commission has
properly applied its pole attachment authority under section
224 requires that the Court determine the statutory
classification of the services for which the pole attachments
are used.

A straightforward application of the plain language of the
Act and uncontested and longstanding Commission precedent
demonstrates that the pole attachments at issue are used to
provide telecommunications service when they are used to
deliver Internet access service to the public.’ This is so
because Internet access service is itself an “information
service,” which the Act states by definition is provided “via
telecommunications.” 47 U.S.C. § 153(20). When “tele-

*In its February 5, 2001, Motion for Leave to Dispense With
Preparation of a Joint Appendix, the Commission stated that: “The
questions presented are questions of law.” /d. at 1. EarthLink agrecs.
EarthLink also believes that those questions may be resolved by a plain
reading of the Act, and accordingly that there are no statutory ambiguities
with respect to which the Court owes any deference to the Commission's
interpretation. Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843 (1984).

° The appeals court properly noted that Internet access service is itself
an “information service.” Gulf Power Co. v. F.C.C., 208 F.3d 1263, 1277
(11th Cir. 2000); Appendix To Commission’s Petition for Writ of
Certiorari at 30a (hereinafter “Commission Appendix”). As discussed
further below, however, the court’s failure to recognize that every

5

communications” is offered to the public for a fee, it is a
“telecommunications service.” 47 U.S.C. § 153(46). The
information service known as Internet access and the
telecommunications over which that service by definition
rides are both being offered to the public for a fee by the
cable companies using pole attachments for which those
companies seek regulated rates. Thus, the pole attachments at
issue are used to provide a telecommunications service, and
such attachments are properly assigned the section 224(e)
rate.

A plain reading of the Act also makes clear that Internet
access service is not a “cable service,” and that the entities
making pole attachments to provide Internet access service
are not operating “cable television systems” to the extent that
they use their cable facilities to provide Internet access
service. Properly determining that the pole attachments at
issue are used to provide telecommunications services
compels the result that rates for such attachments must
conform to the criteria set forth in section 224(e) in the
absence of a voluntary agreement between the utility and the
attaching entity.’ :

To summarize, application of the authorities discussed
below leads to the following conclusions. (1) As the

information service offered to the public for a fee necessarily includes a
telecommunications service renders its analysis fatally incomplete.

” As EarthLink discusses in section C, infra, the Commission has made
it clear that a single rate applies to each pole attachment, regardless of the
number of different types of service provided using that attachment (e.g.,
cable service and telecommunications service). This is consistent, for
example, with the language of section 224(d)(3), which provides that the
rate specified in that section applies to pole attachments used to provide
both cable services and telecommunications services until the new rate
described in section 224(e) is established. 47 U.S.C. § 224(d)(3). After
February 8, 2001, when telecommunications services are offered over the
same attachments as cable services, the section 224(e) rate applies. See
Commission Appendix at 65a, n. 26.

6

Commission has stated, Internet access is an “information
service” under the Act. (2) By the plain terms of the Act,
“information services” are provided “via telecommunica-
tions.” 47 U.S.C. § 153(20). (3) Telecommunications offered
to the public for a fee constitutes “telecommunications
service,” “regardless of the facilities used.” 47 U.S.C.
§ 153(46). (4) Pole attachments used to transmit Internet
access service to the public are being used to provide a
“telecommunications service” to which the section 224(e)
pole attachment rate applies.

The purpose of this brief is to bring to the attention of the
Court the legal authorities that provide this clear and simple
resolution. In applying these authorities to the decision below,
EarthLink urges the Court to overturn that part of the lower
court’s decision that states that the Commission has no
authority to regulate pole attachments used by cable
companies to deliver Internet access services, but to affinn
those parts of the decision that hold that Internet access is not
a cable service and that the Commission musi follow the
mandates of sections 224(d) and 224(e) in applying its pole
attachment rate authority.

ARGUMENT

A. The Court Of Appeals Properly Rejected The
Commission’s Claim That It Could Disregard
Subsections (d) and (e) Of Section 224.

At the outset, EarthLink agrees with the Eleventh Circuit
and the utility companies that the proper application of
section 224 requires that the statutory classification of the
services for which pole attachments are used must always be
determined before the Commission may set a rate for those
attachments. Gulf Power v. F.C.C., 208 F.3d at 1276;
Commission Appendix at 27a; Brief in Opposition at 13.
This is so because the Act provides no discretion to the
Commission as to whether to apply the section 224(e) rate if

7

the pole attachment at issue is used to provide
“telec mmunications services.” As the Commission itself
held in the order under review, the provisions of section
224(e) are mandatory if they are applicable:

We note that in the one case where Congress
affirmatively wanted a higher rate for a particular
service offered by a cable system, it provided for one in
section 224(e). In requiring that the Section 224(d) rate
apply to any pole attachment used ‘solely to provide
cable service,’ we do not believe Congress intended to
bar the Commission from determining that the Section
224(d) rate methodology also would be just and
reasonable in situations where the Commission is not
statutorily required to apply the Section 224(e) rate.

In the Matter of Implementation of Section 703(e) of the
Telecommunications Act of 1996, Report and Order, 13
F.C.C.R. 6777, 6796; Commission Appendix at 90a
(emphasis added) (the Commission’s order below is
hereinafter referred to as the “Order’’).

Because the Commission acknowledges that it must apply
the section 224(e) attachment rate if a pole attachment is used
to provide a “telecommunications service,” and because the
Commission further recognizes that the section 224(e) rate is
different from the section 224(d) rate that the Commission
chose to apply, it is necessary in applying section 224 first to
determine whether the admittedly mandatory rates prescribed
by section 224(e) apply. If those rates do apply, that is the
end of the matter, and there is no need to determine whether
the Commission has any discretion to set rates for services
that could hypothetically fall outside of the “cable service”
and “telecommunications service” classifications. Accord-
ingly, the Commission’s Order is fundamentally flawed
because the Commission quite consciously decided not to
answer the threshold question of whether the relevant pole
attachments are used to provide a “telecommunications

8

service” (and are thus covered by section 224(e)), or whether
they are used “solely to provide cable service” and are
therefore grandfathered at a lower rate under section
224(d)(3). In its Order, the Commission stated: -

We need not decide at this time, however, the precise
category into which Internet services fit. Such a
decision is not necessary in order to determine the pole
attachment rate applicable to ‘cable television systems
using pole attachments to provide traditional cable
services and Internet services.

Commission Appendix at 89a-90a.

If it turned out that cable-based Internet access services
were in fact “solely” cable services, then the analytical
infirmity of the Commission’s abbreviated approach would
have no practical effect because the rate that the Commission
set would comport with the rate set by the statute, albeit for a
reason different from that stated by the Commission. In a
more complex situation, if the Commission had determined
that the pole attachments were used to provide neither a
“cable service” nor a “telecommunications service,” then this
Court would be faced with two questions. The first would be
whether the Commission was correct in its classification of
the service for which pole attachments were sought. If that
question were answered in the affirmative, the second
question that would have to be addressed would be the one
that the Commission seeks to have answered, namely,
whether the Commission has independent authority under
sections 224(a)(4) and 224(b)(1) to set pole attachment rates
for cable facilities used to transmit Internet access services.
Neither of those scenarios is presented here.

As EarthLink demonstrates below, the pole attachments at
issue here are used to provide a “telecommunications service”
when they are used for communications links over which
Internet access services are transmitted to the public.

9

Accordingly, the Commission’s failure to address the
question of whether the pole attachments are used in the
provision of telecommunications services renders its Order
invalid. However, because the pole attachments at issue are as
a matter of law used to provide “telecommunications
service,” the Eleventh Circuit’s holding that the Commission
has no jurisdiction over cable company attachments used to
provide Internet access service is incorrect and should be
reversed."

B. Internet Access Service Is Not A “Cable Service,”
And The Entities That Seek Attachments Do Not
Operate “Cable Television Systems” When They
Provide Internet Access Service.

As noted above, if the service at issue were in fact “solely”
a cable service, then the Commission’s Order, although
analytically infirm, would be legally supportable on grounds
other than those offered by the Commission. This possibility
need not long delay the Court. The Eleventh Circuit’s
reasoning as to why Internet access is not a “cable service” is
undeniably correct. That reasoning echoes the reasoning of
the Ninth Circuit Court of Appeals in AT&T Corp. v. City of
Portland, 216 F.3d 871 (9th Cir. 1999). Both the Eleventh
Circuit and the Ninth Circuit properly concluded that the
Communications Act’s definition of “cable service,” which
states that cable service is the “one-way transmission to
subscribers of (i) video programming, or (ii) other
programming service. . . ,” does not apply to Internet access
service. 47 U.S.C. §522(6). As both courts recognized,
Internet traffic is in no sense “one-way,” nor does it have the

* Because the Act is clear that the definition of “telecommunications
service” does not depend on the nature of the facilities used to provide
that service, 47 U.S.C. § 153(46), EarthLink agrees with the FCC that the
Eleventh Circuit’s decision on the second issue on which certiorari was
granted should be reversed.

10

other attributes of the services that Congress designated as
“cable services.” See Portland, 216 F.3d at 876-77; Gulf
Power, 208 F.3d at 1276-77; Commission Appendix at 27a-
29a. But see MediaOne Group, Inc. v. County of Henrico,
Virginia, 97 F. Supp.2d 712, 715 (E.D. Va. 2000) (appeal
pending 4th Cir.). Accordingly, the decision below should be
affirmed as written with respect to the conclusion that
Internet access service is not a “cable service.”

Related to the point that Internet access services are not
cable services is the fact that the transmission facilities for
which cable companies here seek attachments are not “cable
television systems” under the plain language of the Act when
they are used to provide Internet access services to the public.
The Commission places heavy emphasis on the fact that
section 224(a)(4) defines “pole attachment” as “any
attachment by a cable television system or provider of
telecommunications service. . . .”". Commission Petition at 12
(emphasis in original). The Commission’s emphasis on the
word “any” is not by itself inappropriate, but that emphasis
overlooks the need to scrutinize carefully the definition of the
term “cable television system.” That term is not defined in
the Act, but it is defined in the Commission’s regulations. 47
C.F.R. § 76.5(a) sets forth the same definition for both “cable
system” and “cable television system.” That regulation reads
in relevant part as follows:

(a) Cable system or cable television system. A facility
consisting of a set of closed transmission paths and
associated signal generation, reception, and control
equipment that is designed to provide cable service
which includes video programming and which is
provided to multiple subscribers within a community,
but such term does not include: ...

(3) A facility of a common carrier which is subject, in
whole or in part, to the provisions of Title Il of the
Communications Act of 1934, as amended, except that

11

such facility shall be considered a cable system to the
extent such facility is used in the transmission of video
programming directly to subscribers, unless the extent
of such use is solely to provide interactive on-demand
services.

47 C.F.R. § 76.5(a) (emphasis added).”

For three reasons, all major cable companies are in fact
common carriers “subject, in whole or in part,” to Title II of
the Communications Act, and their systems are thus not
“cable television systems” except to the extent that they are
used to transmit video programming.'’ First, in City of
Dallas, Texas v. F.C.C., 165 F.3d 341 (Sth Cir. 1999), on
remand 14 F.C.C.R. 19700, the NCTA mounted a successful
challenge to a Commission order regarding open video
systems on the grounds that the Commission arbitrarily
differentiated between traditional local exchange carriers
(“LECs”) and cable-based LECs. NCTA’s position was
necessarily premised on the fact that cable companies are
LECs,. /d. at 353-354. All LECs are undoubtedly covered by
Title Il of the Act. See, e.g., 47 U.S.C. § 251(b). Second, as
EarthLink discusses in greater detail below, cable companies are

* The Commission must, of course, follow its own regulations. Morton
v. Ruiz, 415 U.S. 199, 235 (1974). With the exception of a deleted
parenthetical that is not here relevant, the Commission's regulatory
definition of “cable system” and “cable television system” is verbatim the
definition provided by the Act for “cable system.” 47 U.S.C. §§ 153(8),
522(7). That the two terms are synonymous is also demonstrated by the
second sentence of section 224(d)(3), which uses the term “cable system”
instead of “cable television system.”

'’ The Act defines “video programming” as “programming provided
by, or generally considered comparable to programming provided by, a
television broadcast station.” 47 U.S.C. § 522(20). It is self-evident that
Internet access does not fit that definition, and the Commission has so
ruled. /n the Matter of Internet Ventures, Inc. and Internet On-Ramp, Inc.
Petition for Declaratory Ruling, Memorandum Opinion and Order, 15
F.C.C.R. 3247, 3253-54 (2000).

12

telecommunications carriers subject to Title Il of the Act
because they are providing to the public for a fee the
transmission (“telecommunications”) necessary to deliver the
very Internet access services here at issue. 47 U.S.C.
§§ 153(20) and 153(46). Third, petitioner NCTA flatly told
the Commission that its members provide telecommu-
nications services: “NCTA’s members also utilize poles,
conduits and rights of way to deliver telecommunications
services.” In the Matter of Implementation of Section 703(¢)
of the Telecommunications Act of 1996, CS Docket No. 97-
151, Comments of NCTA at | (Sept. 26, 1997).

Because cable companies use the same facilities'' to
provide both cable services and telecommunications services
that are subject to Title II of the Act, their systems fall within
the 47 C.F.R. § 76.5(a)(3) exclusion from the definition of
“cable television system” to the extent that they are used to
provide any service other than video programming.
Accordingly, the pole attachments at issue cannot be
regulated as attachments made by a “cable television system”
and must be regulated as attachments made by “providers of
telecommunications services,” i.e. “telecommunications
carriers.” 47 U.S.C. § 153(44) (* ‘telecommunications
carrier’ means any provider of telecommunications
services”). This analysis by itself entirely disposes of the
Commission’s argument that sections 224(a)(4) and 224(b)(1)
provide it with authority to regulate the rates for the pole
attachments at issue here, because the Commission’s Order is
premised entirely on the incorrect assumption that the
Commission is dealing with “cable television systems.”

'' See Commission Petition at 13 (“Cable television service and
Internet access are routed through the same pole attachments—indeed,
through the same wires at the same time.”).

'2 See Commission Appendix at 90a. In Texas Utilities Electric Co. v.
F.C.C., 997 F.2d 925 (D.C. Cir. 1993), a case relied upon heavily by
petitioners, the court rejected an argument that the Commission's then-

13

C. The Pole Attachments At Issue Are Used To
Provide A Telecommunications Service Under the
Plain Language of the Statute and the Com-
mission’s Longstanding Precedent.

The Commission in its Order simply chose not to address
whether the pole attachments at issue are used to provide
telecommunications services. The Eleventh Circuit began that
analysis, but stopped too soon. The court of appeals correctly
noted that Internet access is an information service, not a
telecommunications service. Gulf Power, 208 F.3d at 1277,
1278; Commission Appendix at 30a-3la. As EarthLink
demonstrates below, however, the finding that Internet access
is an information service compels rather than defeats the
conclusion that pole attachments used in the delivery of
Internet access services to the public are used to provide
telecommunications services.

existing regulatory definition of “cable television system” excluded
coverage under section 224 for pole attachments by cable companies used
for services other than “cable services.” The court’s rejection of that
argument was based primarily on the notion that it did not believe that
Congress intended to limit cable companies’ pole attachment rights only
to those attachments used to provide traditional video programming. /d.
at 931. That concern has been obviated by the 1996 amendments, under
which section 224 now provides mandatory pole attachment rights and
regulated rates for “pole attachments used by telecommunications carriers
to provide telecommunications services... .” 47 U.S.C. §§ 224(e) and
224(f). Inasmuch as it is the use of a cable facility to provide
telecommunications services (which are regulated under Title II of the
Act) that triggers the exclusion found at 47 C.F.R. § 76.5, the section 224
coverage of pole attachments used to provide telecommunications services
ensures that the exclusion creates no gap in the section 224 authority.
Moreover, whereas the definition of “cable system,” which the
Commission has defined as meaning the same thing as “cable television
system,” applied prior to the passage of the Telecommunications Act of
1996 only to Title VI of the Act (see Commission Appendix at 83a), the
definition of “cable system” now expressly applies to the entire Act. 47
U.S.C. § 153(8).

14

The error in the lower court’s analysis is that it failed to
distinguish between the information processing functions that
make Internet access service an “information service” under
the Act and the transmission functions through which the
information service is delivered to consumers. It is the
transmission function (“telecommunications service”) for
which pole attachments are required, and it is that function,
not the information processing function, that defines the uses
to which pole attachments are put. The Ninth Circuit in AT&T
Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000),
succinctly described the distinction between the information
service and telecommunications service functions that are
combined to provide Internet access:

Like other ISPs, @Home consists of two elements: a
“pipeline” (cable broadband instead of telephone lines),
and the Internet service transmitted through that
pipeline. However, unlike other ISPs, @Home controls
all of the transmission facilities between its subscribers
and the Internet. To the extent @Home is a conventional
ISP, its activities are that of an information service.
However, to the extent that @Home provides its
subscribers Internet transmission over its cable
broadband facility, it is providing a telecommunications
service as defined in the Communications Act.

Id. at 878.

Before addressing in depth why the offering of Internet
access service to the public necessarily includes the offering
of a telecommunications service, EarthLink notes that the
“commingling” of telecommunications services with other
services has no impact on the proper pole attachment rate.
Specifically, once it is determined that a pole attachment is
used to provide a telecommunications service (see sections
C.1 and C.2, infra), the section 224(e) rate applies to that

'3 See Commission Reply to Brief in Opposition at 3.

15

attachment regardless of what other services may be offered
using the same attachment. The Commission Stated:
“Separately, Section 224(e)(1), the subject of this Order,
governs rates for pole attachments used in the provision of
telecommunications service, including single attachments
used jointly to provide both cable and telecommunications
service.” Commission Appendix at 64a-65a. That section
224(e)(1) applies to cable operators is reinforced by the
Commission’s regulations, which state: “Cable operators
must notify pole owners upon offering telecommunications
services.” 47 C.F.R. § 1.1403(e).

In this regard, section 224(e), unlike section 224(d)(3),
does not contain the word “solely.” The section 224(e)
rate applies to any attachment that a provider of
telecommunications uses to provide a telecommunications
service. 47 U.S.C. § 224(a)(4). Accordingly, it is irrelevant
for the purposes of applying section 224(e) that a
telecommunications service is in turn used to deliver a
separate service, such as Internet access. The Commission,
and apparently all of the parties, agreed on this point in the
Commission’s proceeding below:

We also agree with cable operators, telecommunications
carriers, and utility pole owners that, if an attachment
previously used for providing solely cable services
would, as a result of the leasing of dark fiber, also be
used for providing telecommunications services, the rate
for the attachment would be determined under Section
224(e), consistent with our discussion regarding
restrictions on service provided over pole attachments.

Commission Appendix at 1 18a-119a (footnotes omitted). The
Commission’s conclusion that an attachment previously used
“solely to provide cable service” is governed by section
224(e) once that attachment is also used to provide a

16
telecommunications service has not been challenged by any

party.“

Having established that the section 224(e) rate applies in
every case in which a pole attachment is used in the provision
of a telecommunications service (whether alone or in
combination with another service), EarthLink next
demonstrates why, under the plain language of the Act and
twenty years of Commission precedent, there is necessarily a
telecommunications service being offered in each instance in
which an Internet access service is offered to the public for a
fee. We begin with the statutory language, followed by a
discussion of the Commission’s orders applying that
language.

1. The Communications Act Analysis

The first step in the analysis set forth below renders the
result that Internet access is itself an “information service.”
The second step, which requires nothing more than a plain
reading of the definition of “information service,”
demonstrates that information services are provided “via
telecommunications.” 47 U.S.C. § 153(20). The third step
asks whether the telecommunications over which the
information service is provided is offered “for a fee directly
to the public or to such classes of users as to be effectively
available directly to the public” so as to fall within the

'4 In an earlier, related pole attachment proceeding, the Commission
said:

The 1996 Act also created a distinction between pole attachments
used by cable operators solely to provide cable service and pole
attachments used by cable operators or by any telecommunication|s]
carrier to provide any telecommunications service. The Act
prescribed a new methodology for determining pole attachment
rates for the latter group.

In the Matter of Implementation of Section 703 of the Telecommunications
Act of 1996, 11 F.C.C.R. 9541, 9544 (1996).

17

definition of “telecommunications services,” 47 U.S.C.
§ 153(46), and thus within the scope of section 224(e).

a. Internet Access Service Is Itself An “Infor-
mation Service.”

The Act states that:

The term “information service” means the offering
of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making
available information via telecommunications, and
includes electronic publishing, but does not include any
use of any such capability for the management, control,
or operation of a telecommunications system or the
management of a telecommunications service.

47 U.S.C. § 153(20). The “offering of a capability for
generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information”
describes precisely the characteristics of Internet access
service and the purposes for which consumers use that
service.'> The Commission has recognized this and has held
that “Internet access” is an information service:

In order to provide those components of Internet access
services that involve information transport, ISPs lease
lines, and otherwise acquire telecommunications, from
telecommunications providers—LECs, CLECs, IXCs, and
others. ... Thus, the information service is provisioned
by the ISP “via telecommunications” including
interexchange communications although the Internet
service itself is an “information service” under section

'° See In The Matter Of Federal-State Joint Board on Universal
Service, Report To Congress, 13 F.C.C.R. 11501, 11540 n.165 (1998)
(hereinafter “Universal Service Report to C ongress”) (“the very core of
the Internet and its associated services is the ability to ‘retrieve’ and
‘utilize’ information”).

18

3(20) of the Act, rather than a telecommunications
service.

In the Matter of Deployment of Wireline Services Offering
Advanced Telecommunications Capability, Order on Remand,
15 F.C.C.R. 385, 401 (Dec. 23, 1999) (emphasis added)."°

b. Information Services Such As Internet Access
Are Delivered Via Telecommunications.

The Act states that “information service means the offering
of a capability for generating, acquiring . . ., OF making
available information via telecommunications. . . .” 47 U.S.C.
§ 153(20) (emphasis added). Accordingly, because Internet
access service is an information service, it is clear from the
statute that Internet access service is provided “via
telecommunications.” /d.

c. The Telecommunications Used To Deliver The
Information Service Known As Internet Access

Is Offered To The Public For A Fee And Is
Thus A Telecommunications Service.

That Internet access is an information service provided “via
telecommunications” does not by itself answer the question of
whether the telecommunications used to provide Internet

‘© The Commission had earlier reported to Congress that Internet
access is an “information service”:

The provision of Internet access service involves data transport
elements: an Internet access provider must enable the movement of
information between customers’ own computers and the distant
computers with which those customers seek to interact. But the
provision of Internet access service crucially involves information
processing elements as well; it offers end users information-service
capabilities inextricably intertwined with data transport. As such,
we conclude that it is appropriately classed as an “information
service.”

Universal Service Report to Congress, 13 F.C.C.R. at 11540 (footnote
omitted) (emphasis added).

19

access is a “telecommunications service,” a term that the Act
defines separately from “telecommunications.” The Act
defines “telecommunications service” as “the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.” 47 U.S.C. § 153(46).
In order to determine whether the offering of Internet access
service (an information service) includes the offering of a
“telecommunications service,” it is necessary under the third
step of the analysis outlined above to determine whether the
“telecommunications” that the Act states is used to provide
the “information service” known as Internet access is being
offered “for a fee directly to the public.” /d.

Petitioner NCTA has answered that question in the
affirmative for the cable companies. NCTA’s petition for
certiorari conclusively establishes that the cable industry is
holding itself out to a large segment of the public as a
provider of Internet access:

Recent technological advances have allowed cable
operators, who have invested billions of dollars in the
effort, to upgrade further their existing coaxial cables
and other equipment so that they can simultaneously
carry both traditional video programming services and
high-speed or “broadband” Internet access at data
transmission speeds hundreds of times faster than the
“narrowband” services available through traditional
telephone lines. The cable industry thus actively
competes against numerous segments of the commu-
nications industry to provide high-speed Internet
services to consumers nationwide.

NCTA Petition for a Writ of Certiorari at 4 (emphasis added).
The NCTA in its petition also cites to a Commission report
that found as of October 30, 2000, the cable industry provided
approximately 2.2 million high speed lines connecting
consumers to the Internet. NCTA Petition at 5. Under any

20

recognizable definition of the “public,” the cable industry is
providing Internet access—and thus necessarily the
“telecommunications” over which Internet access rides—to
the public.'’

The remaining question that must be answered in order to
determine if the telecommunications offered by cable
companies that provide Internet access to the public is a
“telecommunications service” is whether such companies
offer that telecommunications “for a fee.” 47 U.S.C.
§ 153(46). Common sense and simple economics dictate that
cable companies are not giving away Internet access or the
telecommunications over which Internet access is delivered,
and EarthLink does not expect any cable company to argue
that it is doing so. Public advertising and information
distributed by cable companies that offer Internet access
service confirm that customers must pay for the service. For
example, the web sites of major cable operators such as Cox,
Comcast, and AT&T all describe standard rate options for
various cable-based Internet access services. These
companies’ rates can be viewed electronically at,
respectively, © www.cox.com, |§www.comcast.com, and

'’ The classic test for determining whether a telecommunications
provider is a “common carrier” for purposes of the Communications Act
is set forth in National Association of Regulatory Utility Commissioners v.
F.CC.. 525 F.2d 630 (D.C. Cir. 1976), cert. den’d 425 U.S. 992
(“NARUC I”). Under the NARUC / test, which provides that service
providers are common carriers if they hold themselves out
indiscriminately to serve the public, it is not necessary that “a given
carrier’s services must practically be available to the entire public.”
Instead, “one must hold oneself out indiscriminately to the clientele one is
suited to serve... .” /d. at 641. Under the figures cited by the NCTA, this
test is clearly met. The D.C. Circuit recently upheld a Commission ruling
that the NARUC / test is applicable to determine when a carrier is a
“telecommunications carrier” (i.e., a “provider of telecommunications
services,” 47 U.S.C. § 153(44)) under the Communications Act, as
amended by the Telecommunications Act of 1996. Virgin Islands
Telephone Corp. v. F.C.C., 198 F.3d 921, 926 (D.C. Cir. 1999).

21

www.athome.att.com. Cable companies that provide Internet
access and its necessary telecommunications component thus
meet the final test for providing “telecommunications
service,” namely, that the service is offered “for a fee.”
47 U.S.C. § 153(46). Accordingly, the section 224(e) rate
must apply.

In other fora, members of NCTA have Suggested that the
fact that end users are charged a single fee for Internet access
means that no fee is charged for the telecommunications
component of that service, and that the cable company is
therefore not providing telecommunications to the public for
a fee. The Commission has consistently rejected the argument
that charging a single fee for the combined offering of an
information service and the telecommunications service over
which it rides means that no fee is charged for the
telecommunications component: “As we have stated basic
services form one component of the charges for enhanced
services—the remaining components of which are available
from the competitive resources and capabilities of the data
processing industry.”'* Jn the Matter of Amendment of
Section 64.702 of the Commission's Rules and Regulations
(Second Computer Inquiry), Final Decision, 77 F.C.C.2d 384,
435 (1980) (emphasis added) (hereinafter “C omputer IT”). See
also In the Matter of Federal-State Joint Board on Universal
Service, Fourth Report and Order On Reconsideration, 13
F.C.C.R. 5318, 5474 (1997) (“We disagree with ITAA’s
contention that, because systems integrators provide both
basic telecommunications services as well as enhanced
services for a single price, systems integrators are engaged
exclusively in the provision of enhanced information
services.”); see also In the Matter of Policy and Rules
Concerning the Interstate, Interexchange Marketplace,
Report and Order, CC Docket Nos. 96-61, 98-183, 940

'* “Basic services” are “telecommunications services.” See n. 19 infra.

22

(March 30, 2001) (reaffirming that carriers that provide
packages of telecommunications and enhanced services at a
single price must make transmission capacity available
separately).

Thus, under the plain language of the statute and the facts
as presented by petitioner NCTA, the pole attachments here at
issue are used to provide “telecommunications service.” Pole
attachments for those services are therefore regulated under
section 224(e) of the Act.

2. Twenty Years Of Commission Precedent Holds
That Information Services Offered To The
Public Are Always Delivered Using A Telecom-
munications Service.

The conclusion from the plain language of the Act that the
offering of Internet access services to the public for a fee
necessarily includes the offering of a telecommunications
service is supported by twenty years of Commission
precedent.

Since its decision in Computer II], the Commission has
consistently held that every information service that is offered
to the public is delivered by a common carrier transmission
service (i.e., a “telecommunications service”). See 47 U.S.C.
§ 153(44)(“A telecommunications carrier shall be treated as a
common carrier under this Act only to the extent that it is
providing telecommunications services. . . .”).

In Computer II, the Commission established a regulatory
regime that created a distinction between so-called
“enhanced” computer processing services and “basic”
transmission services. Under the basic/enhanced distinction
of Computer II, the Commission chose to regulate “basic
service” as a common carrier offering, but decided as a
general matter to exempt from common carrier regulation
“enhanced services” provided using those basic services.

23

Computer II, 77 F.C.C.2d at 418-19, 423. After the passage of
the Telecommunications Act of 1996, the Commission
reaffirmed its Computer II holding and restated its Computer
II order in the language of the amended Act, replacing the
term “basic service” with “telecommunications service” and
the term “enhanced service” with “information service.” !?

The Commission described the distinction and the
relationship between enhanced services and basic services
this way in Computer IT:

[AJn essential thrust of this proceeding has been to
provide a mechanism whereby non-discriminatory
access can be had to basic transmission services by all
enhanced service providers. Because enhanced services
are dependent upon the common carrier offering of
basic service, a basic service is the building block upon
which enhanced services are offered.

The Commission reported the following to Congress:

Reading the statute closely, with attention to the legislative history,
we conclude that Congress intended these new terms to build upon
frameworks established prior to the passage of the 1996 Act.
Specifically, we find that Congress intended the categories of
“telecommunications service’ and “information service” to
parallel the definitions of “basic service” and “enhanced service”
developed in our Computer Il proceeding, and the definitions of
“telecommunications” and “information service” developed in the
Modification of Final Judgment breaking up the Bell system.

Universal Service Report To Congress, 13 F.C.C.R. at 11511 (emphasis
added). In a proceeding begun prior to that report, the Commission sought
comment on its general conclusion that “basic service” and
“telecommunications service” are the same. In the Matter of C omputer [11
Further Remand Proceedings: Bell Operating C ompany Provision of
Enhanced Services, 13 F.C.C.R. 6040, 6066-67 (1998). The Commission
has recently asked parties to refresh the record in that proceeding. See
Update and Refresh Record on Computer Ill Requirements, 66 Fed. Reg.
15064 (2001).

24

Id. at 475 (emphasis added). Under this framework, which the
Commission has determined Congress adopted in the
Telecommunications Act of 1996,” it is possible for a
telecommunications service to exist without an information
service, but it is logically, technically, and legally impossible
for an information 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
service. Moreover, the Commission has made it clear that the
fact that a telecommunications service is used to provide an
information service does not in any way change the statutory
classification of the telecommunications service:

Bell Atlantic seems to reason that because enhanced
services are not common carrier services under Title II,
the basic services that underlie enhanced services are
somehow also not subject to Title Il. We do not agree.
Enhanced services by definition are services “offered
over common carrier transmission facilities.” Since the
Computer II regime, we have consistently held that the
addition of the specified types of enhancements (as
defined in our rules) to a basic service neither changes
the nature of the underlying basic service when offered
by a common carrier nor alters the carrier’s tariffing
obligations, whether federal or state, with respect to that
service.

Filing and Review of Open Network Architecture Plans, 4
F.C.C.R. 1, 141 (1988) (brackets in original) (emphasis
added).

More recently, the Commission reiterated the principle that
the fact that a telecommunications service is used to deliver
an information service (specifically, Internet access) in no

” See note 19, supra.

: 25

way changes the nature of the underlying telecommunications

service:
[C]arriers which offer basic interstate telecommunica-
tions functionality to end users (such as ISP subscribers)
are “telecommunications carriers” covered by the
relevant provisions of section 251 and 254 of the Act
“regardless of the underlying technology those service
providers employ, and regardless of the applications
that ride on top of their services.” In other words, even
though the access provided to the ISP by the local
exchange carrier facilitates the delivery of an
information service because of the “applications that ride
on top” of the telecommunications service, that same
access necessarily facilitates the origination of the
underlying telephone toll service used to transport the
ISP’s Internet access service.

In the Matter of Deployment of Wireline Services Offering
Advanced Telecommunications Capability, Order on Remand,
15 F.C.C.R. 385, 402-03 (1999) (italics in original).

The authorities cited above make it clear that the fact that
an ISP uses telecommunications services obtained from a
separate carrier does not change the statutory classification of
the telecommunications service. That this is the case is
underscored by the fact that the Commission did not even
discuss in its Order the possibility that a telecommunications
carrier whose customers include ISPs or ISP subscribers
would somehow lose its pole attachment rights or pay
anything other than the section 224(e) rate for attachments so

employed.
It is similarly clear that the statutory classification of a
telecommunications service used to provide an information

service does not change when a telecommunications carrier
uses its own transmission facilities to provide that

26

information service. The Commission addressed precisely
this issue in 1995:

Thus, having applied Commission Rules and found that
Frame Relay Service is a basic service, we conclude
that, pursuant to the Computer II decision, all facilities-
based common carriers providing enhanced services in
conjunction with basic frame relay service must file
tariffs for the underlying frame relay service and acquire
that tariffed service in the same manner as resale
carriers.
In the Matter of Independent Data Communications
Manufacturers’ Association, Inc., Petition for Declaratory
Ruling That AT&T's Frame Relay Service Is A Basic Service,
Memorandum Opinion and Order, 10 F.C.C.R. 13171, 13725
(1995) (emphasis added) (hereinafter “Frame Relay Order’),
see also Portland, 216 F.3d at 878.

Earlier in the Frame Relay Order, the Commission
specifically declined to apply the so-called “contamination
theory” to facilities-based carriers that provide both basic
(telecommunications) services and enhanced (information)
services. The “contamination theory” is the mechanism by
which the Commission has chosen to exempt from common
carrier regulation those information service providers (such as
EarthLink) that do not own their own transmission facilities
and therefore purchase telecommunications service | from
others in order to deliver their information services.”' In

?' The name for the contamination theory comes from the concept that,
with respect to information service providers that do not use their own
transmission facilities, the combining of the information service
provider's information services with the telecommunications service
purchased from a common carrier “contaminates” the telecommunications
service and, for the purposes of the Commission's exercise of common
carrier authority over the non-facilities-based information service
provider only, renders the entire offering an unregulated information
service. See, e.g., Frame Relay Order, 10 F.C.C.R. at 13719. The

27

declining to apply the contamination theory to facilities-based
carriers, the Commission summarized the purpose of keeping
the telecommunications service and information service
functions separate for regulatory purposes, especially when
both services are offered by the same entity:
Moreover, application of the contamination theory to
a facilities-based carrier such as AT&T would allow
circumvention of the Computer II and Computer III
basic-enhanced framework. AT&T would also be able
to avoid Computer II and Computer III unbundling and
tariffing requirements for any basic service that it could
combine with an enhanced service. This is obviously an
undesirable and unintended result.

Frame Relay Order at 13723.

All of these authorities point to the same conclusion: a
telecommunications service used to transmit an information
service remains a telecommunications service. Despite the
clarity of the Act and the Commission’s own precedent, the
Commission in the Order under review has sub silentio
adopted a rule that treats telecommunications services offered
by cable companies in combination with information services
(here, Internet access services) differently than the same
telecommunications services offered in combination with
information services by more traditional telecommunications

rationale for exempting from common carrier regulation those information
_ Service providers that do not own their own transmission facilities is that
the Commission will in every instance continue to regulate the
telecommunications service that underlies an offering to the public of
information services, whether that telecommunications service is
purchased by the information service provider from a third party or
provided using the information service provider's own facilities. See, e.¢.,
Computer Il, 77 F.C.C. 2d at 429 (“This structure enables us to direct our
attention to the regulation of basic services and to assuring
nondiscriminatory access to common carrier telecommunications facilities
by all providers of enhanced services.”’).

28

carriers.” Specifically, although the Commission appears to
have no doubt that a telephone company that also provides
Internet access to the public is necessarily offering
telecommunications service (and thus may obtain pole
attachments at the section 224(e) rate), the Commission has,
without explanation, simply ignored the fact that a cable
company providing the same combination of services is also
providing a telecommunications service.

The statute does not allow this. The Act defines
“telecommunications service” as “the offering of tele-
communications for a fee directly to the public . . .,
regardless of the facilities used.” 47 U.S.C. § 153(46)
(emphasis added). As the Commission has affirmatively
acknowledged in the specific context of transmission services
associated with Internet access, cable companies can and do
provide telecommunications services:

Stated differently, when other telecommunications
carriers, such as interexchange carriers (IXCs) or cable
service providers, compete with the BOCs in providing
basic services to ISPs, the BOCs are less able to engage
successfully in discrimination and cost misallocation
because they risk losing business from their ISP
customers for basic services to these competing
telecommunications carriers.

In The Matter of Policy and Rules Concerning the Interstate,
Interexchange Marketplace, Further Notice Of Proposed

2 Twenty-five years ago, the U.S. Court of Appeals for the District of
Columbia Circuit reversed a Commission decision that made the same
mistake. In National Association of Regulatory Utility Commissioners v.
F.C.C., 553 F.2d 601 (1976) (“NARUC IT"), the court rejected the
Commission’s argument that two-way, non-video communications
services offered by cable companies were not common carrier services
because those services “were carried by entities (cable operators)
previously adjudged to be non-common carriers.” /d. at 608 (footnote
omitted).

~~

29

Rulemaking, 13 F.C.C.R. 21531, 21555 (1998) (emphasis
added). For the purposes of section 224 and for the purposes
of those provisions of the Act that do not deal with
distinctions among local exchange carriers, the Act treats all
telecommunications carriers alike. One of the clear purposes
of the 1996 amendments to section 224 and to other
provisions of the Communications Act was to place
telecommunications carriers on a regulatorily neutral field
without regard to whether those carriers began life as
telephone companies or cable companies.”?> The Commission
has disregarded this guiding principle in a number of
proceedings dealing with cable facilities. In the current case,
the Commission’s refusal to follow the plain mandate of
Congress has resulted in an analysis and an Order that cannot
be upheld.

CONCLUSION

The Commission failed in its Order to answer the question
that is essential to the proper application of section 224 to
pole attachments made by cable companies that provide
Internet access to the public using their own transmission
facilities. Specifically, the Commission refused to decide
whether such pole attachments are used “solely to provide
cable service,” or whether they are used to provide
“telecommunications services.” The court of appeals
correctly decided that the pole attachments at issue were not
used “solely to provide cable service,” on the grounds that

** Indeed, as the court nated in City of Dallas v. F.C.C., 165 F.3d 341
(Sth Cir. 1999), “two of the primary goals of the Act were to facilitate
cable companies’ becoming LEC’s and to permit LEC’s to become cable
companies.” /d. at 354 n.13; see also In the Matter of Implementation of
the Local Competition Provisions in the Telecommunications Act of 1996,
11 F.C.C.R. 15499, 15989-90 (1996) (“We believe, as a general policy
matter, that all telecommunications carriers that compete with each other
should be treated alike regardless of the technology used unless there is a
compelling reason to do otherwise.”).

30

Internet access is not a “cable service” under the Act. The
court went on to hold, however, that the Commission does not
have jurisdiction to regulate pole attachments for cable
facilities used to provide Internet access services because
Internet access services are information services rather than
telecommunications services. This second holding by the
court of appeals is incorrect because it fails to recognize that
every information service offered to the public for a fee is
necessarily provided over a telecommunications service. Both
the plain language of the Communications Act and twenty
years of Commission precedent teach that telecommu-
nications services used to deliver information services do not
cease to be telecommunications services simply because of
the use to which they are put.

Based on the foregoing, the holding of the Eleventh Circuit
that the pole attachments here at issue are not used “solely to
provide cable service” should be affirmed, and the Eleventh
Circuit's holding that the Commission may not regulate such
pole attachments under its section 224(e) authority over pole
attachments used for telecommunications services should be
reversed.

Respectfully submitted,
DAVE BAKER JOHN W. BUTLER *
Vice President EARL W. COMSTOCK
Law and Public Policy HEATHER M. SPRING
EARTHLINK, INC. SHER & BLACKWELL
1430 West Peachtree Street 1850 M Street, NW, Ste. 900
Atlanta, GA 30309 Washington, D.C. 20036
(404) 815-0770 (202) 463-2500

Counsel for EarthLink, Inc.

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0432%3A16. Public record. Not legal advice.