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

———

"APR & 2001 (i) | wee mm

, No. 00-843 | prick oF Tit CLARK

Supreme Court of the Anited States

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

Petitioners,

Vv.

GULF POWER COMPANY, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE ASSOCIATION FOR LOCAL

TELECOMMUNICATIONS SERVICES, AT&T

WIRELESS SERVICES, INC., TELIGENT, INC.,

WINSTAR COMMUNICATIONS, INC., WIRELESS

COMMUNICATIONS ASSOCIATION

INTERNATIONAL, AND XO COMMUNICATIONS,

INC. AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

Of Counsel: PHILIP L. VERVEER

TIMOTHY R. GRAHAM THEODORE CASE WHITEHOUSE*

JOSEPH M. SANDRI, JR. GUNNAR D. HALLEY

RUSSELL C. MERBETH WILLKIE FARR & GALLAGHER

BARRY J. OHLSON 1155 21st Street, NW

WINSTAR COMMUNICATIONS, INC. Washington, DC 20036

1615 L Street, NW, Suite 1260 (202) 328-8000

(202) 833-5678 Winstar Communications, Inc.

Attorneys for Winstar and Teligent, Inc.

Communications, Inc. * Counsel of Record

(Additional Counsel listed on inside cover)

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

nt

LAURENCE E. HARRIS

TERRI B. NATOLI

VICTORIA A. SCHLESINGER

TELIGENT, INC.

Suite 400

8065 Leesburg Pike

Vienna, VA 22182

(703) 762-5100

Attorneys for Teligent, Inc.

HOWARD J. SYMONS

MICHELLE MUNDT

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND PoPEO, PC

Suite 900

701 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 434-7300

Attorneys for AT&T Wireless

Services, Inc.

GARY D. BEGEMAN

CATHLEEN A. MASSEY

XO COMMUNICATIONS, INC.

Suite 1000

1730 Rhode Island Avenue, NW

Washington, DC 20036

(202) 721-0999

Attorneys for XO

Communications, Inc.

DOUGLAS I. BRANDON

AT&T WIRELESS SERVICES, INC.

1150 Connecticut Avenue, NW

4th Floor

Washington, DC 20036

(202) 223-9222

Attorney for AT&T Wireless

Services, Inc.

JOHN WINDHAUSEN

JONATHAN M. ASKIN

ASSOCIATION FOR LOCAL

TELECOMMUNICATIONS

SERVICES

Suite 900

888 17th Street, NW

Washington, DC 20006

(202) 969-2587

Attorneys for Association for

Local Telecommunications

Services

ANDREW T. KREIG

WIRELESS COMMUNICATIONS

ASSOCIATION INTERNATIONAL

Suite 810

1140 Connecticut Avenue, NW

Washington, DC 20036

(202) 452-7823

Attorney for Wireless

Communications Association

International

QUESTION PRESENTED

The Wireless Industry Amici seek to address the second of

the two issues presented before the Court, which is:

Whether those provisions of the Pole Attachments Act

apply to attachments by providers of wireless

telecommunications services no less than to attachments

by providers of wireline telecommunications services.

(i)

TABLE OF CONTENTS

I THE ELEVENTH CIRCUIT’S ERROR OF

LEGAL ANALYSIS COULD SUBSTAN-

TIALLY IMPAIR COMPETITION IN THE

TELECOMMUNICATIONS INDUSTRY BY

FIRMS EMPLOYING WIRELESS TECH-

NOLOGY, IN CONTRAVENTION OF THE

CONGRESSIONAL PURPOSE TO PRO-

MOTE SUCH COMPETITION THROUGH

OT

A. The Plain Language Of Section 224

Provides No Basis For Excluding Wireless

Telecommunications Carriers From The

Communications Act’s Definition Of

“Telecommunications Carrier.” ..................

B. The Eleventh Circuit Pursued An Inquiry

Into The Intent Of Congress Without

Affording The FCC The Requisite

CRevi0R DGGRIORCB.....20..ccccccccceccsccsssccssoseecees

(iii)

ona fF NN

10

iv

TABLE OF CONTENTS—Continued

fl. IN AN EFFORT TO INDEPENDENTLY

ASCERTAIN THE INTENT OF CONGRESS,

THE PANEL MAJORITY RELIED UPON

ERRONEOUS AND SUA SPONTE FACT-

UAL CONCLUSIONS ABOUT THE

NATURE AND NEEDS OF WIRELESS

TELECOMMUNICATIONS TECHNOL-

OGIERG ..ncceccccceeccrscncecesececssnsvsccsccssscosssssonssossoonecess 13

A. The Eleventh Circuit Panel Majority

Failed To Recognize The Use By Wireless

Telecommunications Networks Of

Wireline Facilities And Erroneously

Contemplated A Fluid, Dynamic

Technology That Does Not Rely On A

Particular Location For Equipment

RensteeRI OR qn cccccccccccesscsressceccsessesssssscssessssoecce 13

B. Wireless Telecommunications Carriers

Must Be Permitted To Attach To Utility

Facilities In Order To Construct And

Operate Their Networks. ...........-seseeeeeeees 15

CONCLUSION ....ccccccsecccovsscoscoccsesssesssesssesssccsecsooesosssosooes 20

st Ea 2?" =~

wae he Fw

Vv

TABLE OF AUTHORITIES

CASES Page

Baltimore Gas & Elec. v. Natural Res. Def.

Council, Inc., 462 U.S. 87 (1983) ......cccceeseeeees 12, 13

Chevron U.SA., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) .....ccccecseeeeees 11

Consolo v. Federal Maritime Comm'n, 383 U.S.

Ge Cee aneresansessnssnnenssinninnibemenentensnnindianiintints 12

FCC v. National Citizens Comm. for Broad., 436

el Fe ge eel ancensnnenienimenomnnaiiionntenmenaines 12

Federal Power Comm'n v. Transcontinental Gas

Pipe Line Corp., 423 U.S. 326 (1976) .......000000 19

Gulf Power Co. v. FCC, 208 F.3d 1263 (11th Cir.

2000), cert. granted, 121 S. Ct. 879 (2001)....... passim

STATUTES

By Wise OF ie terenenserenesnnerterenmmsensntendbeniesssmansens 10

By ite: OP GEE crennsscenesnsevensmmmenentncninsemenens 10

FF Gans OF GIT ccnsevmcnsnecnenncosnsntmenemeinsmniein 8, 10

SF ne Oe aii irrcticnnntrcnmmnerenensnteieemennpsnenanenmienes passim

Sy en OPT cennniccemevennninncnctnnnitinenntnenasints 7,10

AGENCY DECISIONS

Implementation of Section 703(e) of the

Telecommunications Act of 1996; Amendment

of the Commission's Rules and Policies

Governing Pole Attachments, 13 F.C.C.R.

GPO QUUD connsssssemennnenetneninnnementennmeness 5, 12, 19

Implementation of Section 6002(b) of the

Omnibus Budget Reconciliation Act of 1993;

Annual Report and Analysis of Competitive

Market Conditions With Respect to

Commercial Mobile Services, 15 F.C.C.R.

DO Gee csecavensenensscmnmensesenmscenenmnesmnesenantnes 8,9

vi

TABLE OF AUTHORITIES—Continued

Page

Inquiry Concerning the Deployment of Advanced

Telecommunications Capability to All

Americans in a Reasonable and Timely

Fashion, and Possible Steps to Accelerate

Such Deployment Pursuant to Section 706 of

the Telecommunications Act of 1996, 15

PIOCR. FDGUS (ROG D) cccccccccccscccccecccsssccsssccsscese 8, 15

Promotion of Competitive Networks in Local

Telecommunications Markets; Wireless

Communications Association International,

Inc. Petition for Rulemaking to Amend Section

1.4000 of the Commission's Rules to Preempt

Restrictions on Subscriber Premises Reception

or Transmission Antennas Designed to

Provide Fixed Wireless Services;

Implementation of the Local Competition

Provisions in the Telecommunications Act of

1996; Review of Sections 68.104, and 68.213

of the Commission's. Rules Concerning

Connection of Simple Inside Wiring to the

Telephone Network, WT Docket No. 99-217,

CC Docket Nos. 96-98 and 88-57, 2000 FCC

LEXIS 5672 (Oct. 25, 2000) ......sccccsseesseersseereeees 16

CONGRESSIONAL MATERIAL

S. Rep. No. 95-580 (1978), reprinted in 1978

USCC.AN. 1D ccccccoscceccccccccccccscscsssssesossssssseses 9

S. Conf. Rep. No. 104-230 (1996) .......cecseeeeeeeeees 4,5

H. Rep. No. 104-204 (1996), reprinted in 1996

BILLA. 1D cccccssccscccccssesscsssssssscccs vesssesoseees 12

IN THE

Supreme Court of the United States

No. 00-843

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

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 THE ASSOCIATION FOR LOCAL

TELECOMMUNICATIONS SERVICES, AT&T

WIRELESS SERVICES, INC., TELIGENT, INC.,

WINSTAR COMMUNICATIONS, INC., WIRELESS

COMMUNICATIONS ASSOCIATION

INTERNATIONAL, AND XO COMMUNICATIONS,

INC. AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

PRELIMINARY STATEMENT’

The Association for Local Telecommunications Services,

AT&T Wireless Services, Inc., Teligent, Inc., Winstar

‘In accordance with this Court’s Rule 37.6, the Wireless Industry

Amici respectfully state that this brief was authored entirely by counsel for

the named amici curiae identified on the cover and signature pages hereof,

and that no person or entity not identified as a party to this brief made a

monetary contribution to the preparation or submission of the brief.

2

Communications, Inc., Wireless Communications Associa-

tion International, and XO Communications, Inc. (the

“Wireless Industry Amici”) respectfully submit this brief as

amici curiae, pursuant to Rule 37 of the Rules of this Court,

in support of Petitioners Federal Communications

Commission and United States of America.”

INTEREST OF THE WIRELESS INDUSTRY AMICI

The Wireless Industry Amici are companies and trade

associations with diverse interests in the wireless

telecommunications industry. They are joined by a common

concern that the Eleventh Circuit’s decision at issue here

could lead to substantial new impediments to the ability of

companies using wireless technology to compete effectively

in’ the telecommunications industry. The Wireless Industry

Amici have extensive relevant industry knowledge that is

germane to the issues presented in this case and has not

already been brought to this Court’s attention.

The Association for Local Telecommunications Services is

the leading national industry association whose mission is to

promote facilities-based local telecommunications competi-

tion. The organization represents companies that build, own,

and operate competitive local telecommunications networks.

AT&T Wireless Services, Inc., a subsidiary of AT&T

Corp., is in the business of providing both mobile and fixed

wireless telecommunications services. AT&T Wireless uses

poles, ducts, conduits, and rights-of-way owned and

controlled by utilities in order to provide these services. It

therefore has a direct and substantial interest in this case.

Teligent, Inc. is a fixed wireless carrier licensed by the

FCC to provide voice and data telecommunications service

via the 24 GHz frequency band and other common carrier

2In accordance with this Court’s Rule 37.3(a), this brief is

accompanied by the written consent of all parties.

3

microwave frequency bands. Teligent provides its services,

including local telephone service, primarily by deploying

fixed wireless broadband networks in numerous cities

throughout the United States.

Winstar Communications, Inc. is a national facilities-based

broadband service company offering local and long distance

telecommunications, high-speed Internet, and data services

using, among other technologies, its fixed wireless systems

that operate in the 38.6-40.0 GHz, Local Multipoint

Distribution Service, and 18 GHz bands. As the result of a

spectrum auction that concluded in the acquisition of

additional licenses in October 2000, Winstar now holds

nearly ubiquitous broadband spectrum coverage throughout

the contiguous United States, Alaska and Hawaii. It currently

offers wireless links that operate at up to 200 megabits per

second.

The Wireless Communications Association International is

the primary trade association worldwide for companies that

provide broadband telecommunications services using fixed

(as opposed to mobile) wireless technology. Its 460 members

on six continents include the vast majority of the world’s

leading fixed wireless licensees and manufacturers of fixed

wireless equipment.

XO Communications, Inc. operates high capacity, fiber

optic and wireless networks in the United States and

internationally providing local, long distance, data and

enhanced telecommunications services. XO’s LMDS licenses

and 39 GHz licenses cover substantially all of the largest

markets in the United States. The company plans to use

wireless technology to connect customers directly to its local

fiber optic and inter-city networks.

This case involves issues of special importance to

telecommunications carriers that use wireless technologies to

provide their telecommunications services. The opinion of

4

the Eleventh Circuit can be interpreted literally to deny the

statutory right of at least some wireless telecommunications

carriers to attach facilities to utility poles on regulated terms

and conditions. If allowed to stand, the decision will suggest

to the public utilities that control access to poles, ducts,

conduits, and rights-of-way that they may exclude tele-

communications carriers employing wireless technology from

access on reasonable terms to the full range of facilities

(poles, ducts, conduits, and rights-of-way) to which Congress

intended all such telecommunications carriers to have access.

As active participants in the deployment of wireless

technology, the Wireless Industry Amici are in a position to

be particularly helpful to the Court in explaining the Eleventh

Circuit panel majority’s erroneous factual assumptions and

highlighting the substantial and important negative

consequences that may _ befall telecommunications

competition if the Eleventh Circuit’s decision is permitted to

stand.

STATEMENT OF THE CASE

The Wireless Industry Amici adopt the statement of the

case set out in Petitioners’ Brief and offer the following

supplemental points as predicates for the argument that

follows.

The amendments to Section 224, granting all

telecommunications carriers (other than the monopoly

incumbent local exchange carriers) a right of access to utility

poles, ducts, conduits, and rights-of-way on regulated terms

and conditions, were enacted as part of the sweeping revision

of the Communications Act of 1934 that Congress effected in

the Telecommunications Act of 1996, Pub. L. No. 104-104,

110 Stat. 56 (1996) (the “1996 Act”). Through enactment of

the 1996 Act, Congress sought “to provide for a pro-

competitive, de-regulatory national policy framework

designed to accelerate rapidly private sector deployment of

advanced telecommunications and information technologies

5

and services to all Americans by opening all

telecommunications markets to competition.” S. Conf. Rep.

No. 104-230, at 1 (1996).

The FCC conducted a rulemaking to implement the 1996

amendments to Section 224, in the course of which the

utilities argued, inter alia, that telecommunications carriers

using wireless technolugy were not among _ the

telecommunications carriers entitled to regulated access to

their poles, ducts, conduits, and rights-of-way. After review

and consideration of numerous comments supporting and

refuting this position, the FCC rejected the utilities’

arguments and concluded that the plain wording of the statute

mandated that telecommunications carriers using wireless

technology are entitled to the benefits and protections of

Section 224. Implementation of Section 703(e) of the

Telecommunications Act of 1996; Amendment of the Com-

mission's Rules and Policies Governing Pole Attachments, 13

F.C.C.R. 6777, 6798 (1998) (the “Order’’).

On review, a divided panel of the Eleventh Circuit declined

to accord deference to the FCC’s construction and

implementation of the amendments to Section 224 on the

grounds that Section 224, as amended, unambiguously

expressed a congressional intent to deny the benefits and

protections of Section 224 to at least some telecommun-

ications carriers employing wireless facilities. Gulf Power

Co. v. FCC, 208 F.3d 1263, 1273 n.21 (11th Cir. 2000), cert.

granted, 121 S. Ct. 879 (2001) (“Gulf Power IT’). The panel

‘majority discerned the unambiguously expressed intent of

Congress not from the express language of the statute but

rather by deducing a “negative implication” from

examination of two distinct parts of the statute. /d. at 1274.

The panel majority then advanced a series of erroneous

factual assertions regarding the nature and needs of

telecommunications carriers using wireless technologies that

are neither supported by the FCC’s decision nor compelled by

6

the administrative record before the FCC, apparently to

buttress the conclusion that Congress intended to exclude

such carriers from the benefits and protections of the

amendments to Section 224. Id. at 1275.

SUMMARY OF ARGUMENT

The FCC correctly determined that Congress intended all

competitive telecommunications carriers, regardless of the

technologies they employ in providing their services, to enjoy

a right of access to the poles, ducts, conduits, and rights-of-

way of traditional utilities on regulated terms and conditions.

This necessary determination regarding the scope of Section

224 substantially enhanced the potential for competition by

and among telecommunications carriers using a variety of

technologies including, in particular, wireless technologies.

The Eleventh Circuit’s reversal of the FCC’s decision creates

tremendous uncertainty for telecommunications carriers that

use wireless technology about the extent to which they enjoy

the benefits and protections of Section 224 solely on the basis

of the technology they use, a result that threatens to

undermine the intermodal competition that Congress intended

the FCC to encourage. Telecommunications carriers that

utilize wireless technology need _ reasonable and

nondiscriminatory access to utility poles, ducts, conduits, and

rights-of-way, and the Eleventh Circuit opinion will create

substantial new obstacles to obtaining such access without

harmful delay and expense. Competition and the consumer

benefits it brings, both clear goals of the 1996 Act, are likely

to be constrained or entirely subverted by those new

obstacles.

The Eleventh Circuit’s decision to exclude wireless

telecommunications facilities fom the attachments covered

by Section 224 of the Communications Act is in conflict with

the plain language of the statute. Section 224 does not limit

its application only to those utility facilities that can be shown

7

to constitute bottleneck facilities. In addition, the panel

majority’s exclusion of wireless telecommunications carriers

from the term “telecommunications carrier” in Section 224

will necessarily affect not only the scope of Section 224, but

also the application of all statutory provisions that incorporate

that statutorily defined term. This effect occurs because

Section 224(a)(5) explicitly states that the term “tele-

communications carrier” for purposes of Section 224 has the

same meaning as the term is used in all other provisions of

the Communications Act, with the single exception that

incumbent local exchange carriers are excluded from the

definition for purposes of Section 224. 47 U-S.C.

§ 224(a)(5). A proper plain meaning analysis is sufficient to

demonstrate the error in the Eleventh Circuit’s decision. To

the extent, however, there is discerned some ambiguity in the

Statutory language, the Eleventh Circuit’s decision is in

conflict with the opinion of the expert agency to which the

court failed to afford the requisite Chevron deference.

Finally, the Eleventh Circuit panel majority premised its

legal conclusion upon two incorrect and independently

derived factual assumptions. First, by erroneously conclud-

ing that only one type of mobile wireless technology

constitutes the universe of wireless telecommunications

services affected by its decision, the panel majority failed to

consider the wide variety of wireless telecommunications

technologies currently in use or being developed. Second, the

panel majority incorrectly assumed away the critical need for

attaching wireless telecommunications facilities to utility

poles, ducts, conduits, and rights-of-way. When the full

range of possible wireless services and their needs for access

to utility poles, ducts, conduits, and rights-of-way are taken

into account, the disparity between Congress’ intent and the

Eleventh Circuit’s construction of the 1996 amendments to

Section 224 becomes especially clear, as does the urgent need

for reversal by this Court.

8

For these reasons, the Wireless Industry Amici respectfully

advocate reversal of the Eleventh Circuit’s decision.

ARGUMENT

I. THE ELEVENTH CIRCUIT’S ERROR OF

LEGAL ANALYSIS COULD SUBSTANTIALLY

IMPAIR COMPETITION IN THE TELECOM.

MUNICATIONS INDUSTRY BY FIRMS

EMPLOYING WIRELESS TECHNOLOGY, IN

CONTRAVENTION OF THE CONGRES.-

SIONAL PURPOSE TO PROMOTE SUCH

COMPETITION THROUGH THE 1996 ACT.

The statutory language and the legislative history of the

1996 Act contain numerous references that support the

conclusion that Congress intended in the 1996 Act to promote

competition and innovation in telecommunications services

and specifically sought to eliminate discrimination among the

various telecommunications technologies. Those intentions

are evidenced by the 1996 Act’s definition of “telecom-

munications service” to include the provision of such services

“regardless of the facilities used.” 47 U.S.C. § 153(46).

Multiple varieties of wireless services have become available

to users from a wide array of competing carriers. /nquiry

Concerning the Deployment of Advanced Telecommu-

nications Capability to All Americans in a Reasonable and

Timely Fashion, and Possible Steps to Accelerate Such

Deployment Pursuant to Section 706 of the Telecom-

munications Act of 1996, 15 F.C.C.R. 20,913, 20,932 (2009)

(“Advanced Services Second Report’) (“Wireless services and

technologies have the potential to deliver high-speed services

to residential, rural, and otherwise underserved areas and to

increase competition in the last mile in the near future.”); see

also Implementation of Section 6002(b) of the Omnibus

Budget Reconciliation Act of 1993; Annual Report and

Analysis of Competitive Market Conditions With Respect to

9

Commercial Mobile Services, 15 F.C.C.R. 17,660, 17,682

(2000) (“Increasing [Minutes Of Use] . . . may also indicate

that mobile telephony is moving away from just

complementing existing wireline voice service and towards

competing directly with it.”’).

The Eleventh Circuit properly recognized that poles, ducts,

conduits, and rights-of-way are essential facilities. Gulf

Power Il, 208 F.3d at 1266. The duplication of utility pole

and conduit networks is an economically infeasible

enterprise. See S. Rep. No. 95-580, at 13 (1978), reprinied in

1978 U.S.C.C.A.N. 109, 121. Moreover, as the Eleventh

Circuit recognized, attempts to construct or acquire new

poles, ducts, conduits, and rights-of-way are impeded or

prevented not only by ecoxomic barriers, but also by many

State and local governments that, for a variety of reasons,

limit the ability of cable operators and telecommunications

carriers to obtain necessary rights-of-way or to construct

transmission facilities that duplicate existing utility facilities.

Gulf Power Il, 208 F.3d at 1266. Just as with wireline

carriers, wireless carriers routinely attach their equipment to

utility facilities, a practice often necessitated by a lack of

available alternatives due both to these government-imposed

limitations and to economic realities. As a result, the number

of transmission routes and facilities remains limited, and

providers of wireless services must therefore depend upon

access to the utilities’ poles, ducts, conduits, and rights-of-

way to provide the congressionally-desired competition.

The Eleventh Circuit's denial of the benefits and

protections of Section 224 for a large sector of the

telecommunications industry defeats Congress’ purpose and

risks jeopardizing telecommunications competition. The

consequent harm that may befall the wireless

telecommunications industry as a result of the Eleventh

Circuit's erroneous legal analysis compels the Court's

reversal of the Gulf Power I/ decision.

10

A. The Plain Language Of Section 224 Provides

No Basis For Excluding Wireless Telecom-

munications Carriers From The Communica-

tions Act's Definition Of “Telecommunications

Carrier.”

Telecommunications carriers employing exclusively

wireless facilities and a combination of wireless and wireline

facilities are encompassed by the plain language of Section

224 and are entitled to its benefits. The definitions in Section

3 govern Section 224, as they do the other provisions

encompassed in the Communications Act of 1934, as

amended. See 47 U.S.C. §153. “Telecommunications

carrier” is therein defined to include “any provider of

telecommunications services.” 47 U.S.C. § 153(44). In turn,

“telecommunications service” is defined as the offering of

telecommunications “regardless of the facilities used.”

47 U.S.C. § 153(46). A proper plain meaning analysis would

concer itself with the scope of the foregoing terms. Such an

analysis also would recognize that where Congress sought to

exclude entities from the defined term “telecommunications

carrier” for purposes of Section 224, it did so. See 47 U.S.C.

§ 224(a)(5) (exclusion of incumbent local exchange carriers

from the term “telecommunications carrier”). The Eleventh

Circuit panel majority failed to pursue a proper plain meaning

analysts.

Moreover, Congress itself determined that utility poles,

ducts, conduits, and rights-of-way are facilities to which all

telecommunications carriers, including those that employ

wireless technology, must obtain reasonable and

nondiscriminatory access. Without support in the statute, the

Eleventh Circuit panel majority limited the range of utility

facilities subject to this access requirement, asserting that

“utility poles are not bottleneck facilities for wireless

systems. Because they are not... the act does not provide

the FCC with authority to regulate wireless carriers.” Gulf

Power II, 208 F.3d at 1275. The notable absence of the term

“bottleneck facility” in Section 224 indicates that this

category of facilities did not comprise the universe of

intended coverage by the statute. Nothing in the plain

language of the statute suggests that wireless

telecommunications carriers, as distinct from wireline

telecommunications carriers, must demonstrate that a utility’s

facility operates as a bottleneck before availing themselves of

Section 224’s provision of access.

More broadly, nothing in the language, history, or purpose

of the 1996 Act can be understood to express in any way a

congressional intent to favor any particular technology over

another in the competition that Congress sought to encourage.

However, the Eleventh Circuit did just that. The Gulf Power

l1 decision could be misconstrued in a manner that would

competitively disadvantage telecommunications carriers

using wireless telecommunications technologies vis-a-vis

their predominantly wireline counterparts, and would impair

the provision of intermodal competitive telecommunications

services envisioned—indeed, promoted—by the 1996 Act.

For example, if the utilities were to rely upon the Eleventh

Circuit's conclusion as a basis to deny telecommunications

carriers that rely primarily on fixed and mobile wireless

facilities the Section 224 access that is granted their wireline

competitors (sometimes using exactly the same space),

wireless telecommunications carriers would be placed at a

Significant competitive disadvamtage.

B. The Elewentin Circuit Pursued An Inquiry Into

The Intent Of Congress Without Affording The

FCC The Requisite Chevron Deference.

Courts traditwemalliy afford deference to an agency's

interpretations wf its amganic statute. See Chevron U.S.A.. Inc.

v. Natural Res. Def Caumeil, Inc., 467 U.S. 837, 844 (1984).

However, the Eleventh Circuit failed to defer appropriately to

FCC tactuwl determinations within the agency's area of

12

special expertise. Although it characterized its holding as one

based on the plain language of Section 224, the Eleventh

Circuit nonetheless sought to ascertain the intent of Congress.

In doing so, it assumed away the very foundation of

Congress’ intent in enacting Section 224—that a variety of

technologies should have the benefit of access to existing

public utility poles, ducts, conduits, and rights-of-way to the

extent they are willing to pay a just and reasonable rate for

such access. See H. Rep. No. 104-204, at 91 (1996),

reprinted in 1996 U.S.C.C.A.N. 10, 58 (“The beneficial rate

to cable companies was established to spur the growth of the

cable industry, which in 1978 was in its infancy. Section 105

is intended to remedy the inequity for pole attachments

among providers of telecommunications services.”). The

assumed facts were not found by the FCC and appear in part

in the FCC’s Order only in the course of a description of an

argument that the agency ultimately rejected. Order, 13

F.C.C.R. at 6799 (FCC rejecting the utility assertion that

differences between some wireless equipment and wireline

equipment would render application of the FCC's pole

attachment price formula to wireless telecommunications

equipment difficult as a practical matter).

Judicial deference to agency discretion is premised, in part,

upon the agency's unique expertise in complicated arenas of

regulation. See Consolo v. Federal Maritime Comm'n, 383

U.S. 607, 620 (1966) (Congress’ deliberate adoption of the

deferential arbitrary and capricious standard frees reviewing

courts from the task of weighing the evidence and affords

proper respect to the expertise of the agency). The scope of

review under this standard is narrow and “[a] court is not

empowered to substitute its judgment for that of the agency.”

FCC v. National Citizens Comm. for Broad., 436 U.S. 775,

803 (1978) (quoting Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 416 (1971)). Of particular relevance to

the instant matter, this Court has admonished that when an

agency makes determinations “within its area of special

13 -

expertise, at the frontiers of science[,] ... a reviewing court

must generally be at its most deferential.” Baltimore Gas &

Elec. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103

(1983). Hence, in contravention of the well-established

judicial policy, the Eleventh Circuit panel majority failed to

defer to the FCC's expertise in matters of telecom-

munications.

il. IN| AN EFFORT TO INDEPENDENTLY

ASCERTAIN THE INTENT OF CONGRESS,

THE PANEL MAJORITY RELIED UPON

ERRONEOUS AND SUA SPONTE FACTUAL

CONCLUSIONS ABOUT THE NATURE AND

NEEDS OF WIRELESS TELECOMMUNICA-

TIONS TECHNOLOGIES.

The Eleventh Circuit's premise that Congress did not

intend to include wireless telecommunications carriers within

the scope of Section 224 derived from a set of

misunderstandings about the actual nature of wireless

telecommunications networks as well as their critical need for

access to utility facilities.

A. The Eleventh Circuit Panel Majority Failed

To Recognize The Use By Wireless

Telecommunications Networks Of Wireline

Facilities And Erroneowsiy Contemplated A

Fluid, Dynamic Technology wat Does Not

Rely On A_ Particwlw ~beecation For

Equipment Installation.

The Eleventh Circuit's unsupported factual assertion that

“Petitioners” poles are not botilicneck facilities for wireless

carmers” was erroneous. (julf Power if, 208 F.3d at 275.

The=pane! majority's decisien went on to assert that:

1 1S hghily questionatile whether there are any bottleneck

tacilities for wireless systems. What is beyond question

14

is that utility poles are not bottleneck facilities for

wireless systems. Because they are not, and because the

1996 Act deals with wire and cable attachments to

bottleneck facilities, the act does not provide the FCC

with authority to regulate wireless carriers.

Id. The opinion also asserts without reference to the

underlying factual record that “[mJost of this [wireless]

equipment can be placed on any tall building, and the whole

set-up requires more physical space than a wireline system.”

Id.

Simply put, the factual assumptions that serve as the

foundation of the Eleventh Circuit’s opinion are flawed and

reflect a substantial misunderstanding concerning the nature

of wireless technologies. The panel majority misunderstood

the common industry practice of referring to “wireline” and

“wireless” carriers. In industry practice and as understood by

the FCC, these terms refer to a given carrier’s predominant

technology, and do not imply that a given carrier relies

exclusively on wireless or wireline technology. For example,

wireless telecommunications systems frequently make

extensive use of wireline facilities for traffic backhaul,

redundancy, intermodal operations, in-building transport, and

other purposes. In contrast, the Eleventh Circuit panel

majority appears to be unaware of the frequent combination

of technologies in a single network. See, ¢.g., Quarterly

Report Pursuant to Section 13 or 15(d) of the Securities

Exchange Act of 1934, Form 10Q, for the quarterly period

ended September 30, 2000, Commission file number:

0-30900, XO Communicatioris, Inc., at 18 (“In some cases,

we will make this direct connection by constructing a new

fiber optic extension from our network to the customer's

premises. In other cases, using our fixed wireless spectrum,

we will deploy a high-bandwidth wireless connection

between an antenna on the roof of the customer's premises

and an antenna attached to our fiber rings.”), available at

15

http://www.sec.gov/Archives/edgar/data/1 | 1 1634/000095013

3000045 26/0000950 1 33-00-004526-index.htm. The artificial

“wireline” and “wireless” distinction that the Eleventh Circuit

Opinion interposes upon the telecommunications industry, in

conjunction with its resulting conclusion, will impose non-

market-based constraints against the use of wireless

technologies in telecommunications networks.

The Eleventh Circuit also described a method of how

“wireless systems” operate that is not only uncited to the

record before the court but also incorrect. In explaining the

differences between wireline and wireless systems, the court

stated that “wireless networks . . . transmit through a series of

concentric circle emissions that allow the network to continue

working if one antenna malfunctions.” Gulf Power II, 208

F.3d at 1275. This depiction arguably is descriptive of certain

cellular and PCS telephone networks but does not describe

accurately the facilities used by a significant number of other

providers of materially different wireless services.

Technologically, the court’s description was unduly narrow

and untrue for fixed wireless systems. Advanced Services

Second Report, 15 F.C.C.R. at 20,934 (“{O]nce a wireless

provider has installed its antenna in an area, it completes the

last-mile connection by installing an on-premises transceiver

only for those customers who have actually subscribed to its

service.”). For mobile wireless telecommunications services,

the Eleventh Circuit panel majority presumes incorrectly that

facilities other than poles will be available in the exact

location needed to ensure signal coverage.

B. Wireless Telecommunications Carriers Must

Be Permitted To Attach To Utility Facilities In

Order To Construct And Operate Their

Networks.

The panel majority’s sua sponte factual conclusion that

“utility poles are not bottleneck facilities for wireless

systems,” Gulf Power Il, 208 F.3d at 1275, is plainly

16

incorrect. As a factual matter, many wireless facilities cannot

be placed on si. >ly any building, but instead must be placed

on or immediately ‘djacent to the particular buildings to

which they are providing service in order to serve the

customer residing within that building. For example, a fixed

wireless carrier must install wires through a building that

connect its rooftop wireless antenna to its in-building

customer using utility ducts, conduits, and rights-of-way.

Promotion of Competitive Networks in Local

Telecommunications Markets; Wireless Communications

Association International, Inc, Petition for Rulemaking to

Amend Section 1.4000 of the Commission's Rules to Preempt

Restrictions on Subscriber Premises Reception” or

Transmission Antennas Designed to Provide Fixed Wireless

Services; Implementation of the Local Competition

Provisions in the Telecommunications Act of 1996; Review of

Sections 68.104, and 68.213 of the Commission's Rules

Concerning Connection of Simple Inside Wiring to the

Telephone Network, WT Docket No. 99-217, CC Docket Nos.

96-98 and 88-57, 2000 FCC LEXIS 5672, at *153-*54 (Oct,

25, 2000) (“In order for a customer to receive fixed wireless

service at home or at the office, that customer must be able to

place an antenna at the fixed site.... [T]he inability of a

customer to place an antenna at the customer's fixed site will

result, with few exceptions, in the denial of fixed wireless

service to that customer... .”). Even for cellular and PCS

services in unpopulated areas, utility transmission towers may

be the only structures available for antenna siting.

Wireless telecommunications carriers overcome these

barriers to network construction by placing their wireless and

wireline equipment on or in utility facilities. In many cases,

wireless telecommunications facilities are connected to a

larger network using wireline facilities that must be located

on utility facilities. See Federal Communications Comm'n v.

Gulf Power Co., No. 00-843, Petition for a Writ of Certiorari,

at 21. Moreover, it is of general knowledge in the industry

17

that wireless carriers also attach purely wireless equipment to

utility facilities. See, e.g., New York Power Authority Leases

Towers to Omnipoint to Install PCS Antennas, ENERGY

SERVS, & TELCOM REP., Dec. 5, 1996, at 4 (noting agreements

pursuant to which the New York Power Authority permits

mobile wireless carriers OmniPoint and Sprint to install their

antennas on the electric utility's transmission towers). This

practice is so common that Respondent Duke Energy Corp.

established a subsidiary devoted entirely to marketing its

towers to wireless telecommunications carriers “to help meet

the growing need for antenna sites,” see Duke

Communications Services News Release, July 24, 1998,

available at http://www.duke-energy.com/decorp/content-

/newscenter/newsreleases/1998/jul/19980724, and, prior to

the adoption of the Order, companies had been established

for the purpose of manufacturing devices designed to affix

wireless attachments to utility poles, see Roy Moore, Sharing

the Load With Utilities, WBST, June 1997, at 40. Even the

electric utilities themselves utilize their own facilities to

Support their own retail wireless operations. See, e.g.,

Southern Company, Annual Report Pursuant to Section 13 or

15(d) of the Securities Exchange Act of 1934 for the Fiscal

Year Ended December 31, 1999 (10K), at \-3 (filed Mar. 27,

2000) (describing the company’s digital wireless retail

Operations in the Southeast United States). In an article

released prior to enactment of the 1996 Act, a prominent

electric utility industry trade journal describes the practice of

attaching wireless antennae to Baltimore Gas & Electric

Company's powerline transmission structures (poles, for

purposes of Section 224) as a response to moratoria on new

tower construction imposed by local governments. See

Transmission Structures Pull Double Duty, UTC JOURNAL,

Jan, 1997, at 25. In an equally prominent wireless

telecommunications trade journal, it was reported that

Respondent Texas Utilities had invested in PCS wireless

operator PrimeCo and had permitted the installation of

PrimeCo's wireless equipment on Texas Utilities’ electric

transmission towers. See PCS PrimeCo Makes Call Using

CDMA Technology on 1900 MHz Spectrum, RADIO COMM.

Rep., Nov. 6, 1995, at 71. Respondent Texas Utilities

reported to its shareholders that the rapid construction of its

PCS affiliate’s network was attributable to the carrier's ability

to locate many of its antenna structures on the electric

utility’s transmission towers. See Texas Utilities Company,

1996 Annual Report 3 (1997) (LEXIS, EdgarPlus).

Given these widely publicized industry practices, the FCC

properly rejected the utilities’ efforts to limit their obligations

under the statute on the artificial basis of the technology

predominantly employed by a telecommunications service

provider. As the expert agency, the FCC knew that, while

individual carriers may typically depend at any given time

more heavily on one form of technology than another, many

carriers use a combination of wireline and wireless facilities

to provide their services, both of which require attachment to

utility facilities. See, e.g., Implementation of Section 703(e)

of the Telecommunications Act of 1996; Amendment of the

Commission's Rules and Policies Governing Pole

Attachments, CS Docket No. 97-151, Comments of Teligent,

L.L.C., at 9-10 (filed Sept. 26, 1997) (explaining the wireline

and wireless components of a fixed wireless network and

demonstrating the need for fixed wireless carrier access to

utility rights-of-way), The record in a related FCC

proceeding addressing the same statutory provision and this

precise issue confirms that the FCC also was aware of the

industry practice of mobile wireless carriers attaching

antennae to utility poles for years prior to adoption of the

Order. See, e.g., Letter from Mr. Joseph M. Sandri, Jr.,

Winstar Telecommunications Group to Mr. William F. Caton,

Secretary, Federal Communications Commission of 5/13/97,

CC Docket No. 96-98 (submitting, inter alia, a Houston

Chronicle report in November 1996 that more than 70 percent

19

of mobile wireless carrier PrimeCo’s antennae were located

on existing structures, “mostly on Houston Lighting & Power

transmission towers”). Consequently, the FCC read the plain

language of Sections 224 and 153(46) to mean that the

Section 224 benefits should be available to all

telecommunications carriers regardless of the technologies

employed by any given carrier. Order, 13 F.C.C.R. at 6798.

The Eleventh Circuit panel majority erred by abandoning a

plain meaning analysis and pursuing an inquiry into the intent

of Congress while simultaneously failing to afford the FCC

the requisite level of deference. The harm of this error was

compounded by the mistaken factual conclusions it

independently derived upon which its congressional intent

conclusions were premised. Even if the Eleventh Circuit

were correct in its apparent conclusion that the FCC’s

decision was not adequately grounded in the facts, the proper

course of action would have been to remand the matter back

to the agency for further factual inquiry. Federal Power

Comm'n v. Transcontinental Gas Pipe Line Corp., 423 U.S,

326, 331 (1976) (“If the decision of the agency ‘is not

sustainable on the administrative record made, then the... .

decision must be vacated and the matter remanded . . . for

further consideration."”) (citing Camp v. Pitts, 411 U.S. 138,

143 (1973)). Instead, the Eleventh Circuit erroneously

assumed the role that Congress has assigned to the FCC and

reached its own factual conclusions that are incompatible

with those underlying the FCC’s decision and unanchored in

the record.

20

CONCLUSION

For the foregoing reasons, reversal by this Court of the

Eleventh Circuit's Gulf Power Il decision is warranted

because of the severe harm to congressionally-intended

telecommunications competition that will result from the

panel majority's legal and factual errors.

Respectfully submitted,

Of Counsel: PHILIP L. VERVEER

TIMOTHY R, GRAHAM THEODORE CASE WHITEHOUSE*

JOSEPH M. SANDRI, JR. GUNNAR D. HALLEY

RUSSELL C, MERBETH WILLKIE FARR & GALLAGHER

BARRY J, OHLSON 1155 21st Street, NW

WINSTAR COMMUNICATIONS, INC. Washington, DC 20036

1615 L Street, NW, Suite 1260 (202) 328-8000

Washington, DC 20036 Attorneys for

(202) 833-5678 Winstar Communications, Inc.

Attorneys for Winstar and Teligent, Inc.

Communications, Inc. * Counsel of Record

(Additional Counsel listed on next page)

LAURENCE E, HARRIS

TERRI B, NATOLI

VICTORIA A, SCHLESINGER

TELIGENT, INC,

Suite 400

8065 Leesburg Pike

Vienna, VA 22182

(703) 762-5100

Attorneys for Teligent, Inc.

HOWARD J. SYMONS

MICHELLE MUNDT

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND PoPEO, PC

Suite 900

701 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 434-7300

Attorneys for AT&T Wireless

Services, Inc.

GARY D. BEGEMAN

CATHLEEN A, MASSEY

XO COMMUNICATIONS, INC,

Suite 1000

1730 Rhode Island Avenue, NW

Washington, DC 20036

(202) 721-0999

Attorneys for XO

Communications, Inc.

21

DOUGLAS I, BRANDON

AT&T WIRELESS SERVICES, INC.

1150 Connecticut Avenue, NW

4th Floor

Washington, DC 20036

(202) 223-9222

Attorney for AT&T Wireless

Services, Inc.

JOHN WINDHAUSEN

JONATHAN M. ASKIN

ASSOCIATION FOR LOCAL

TELECOMMUNICATIONS

SERVICES

Suite 900

888 17th Street, NW

Washington, DC 20006

(202) 969-2587

Attorneys for Association for

Local Telecommunications

Services

ANDREW T. KREIG

WIRELESS COMMUNICATIONS

ASSOCIATION INTERNATIONAL

Suite 810

1140 Connecticut Avenue, NW

Washington, DC 20036

(202) 452-7823

Attorney for Wireless

Communications Association

International