# 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%3A19

## Record

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

## Text

———

"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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0432%3A19. Public record. Not legal advice.