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

TUN F700] FILED

Nos. 00-832 and 00-843

IN THE

Supreme Court of the United States:

- <—- - ——

NATIONAL CABLE TELEVISION ASSOCIATION, INC.,

Petitioner,

Vv.

GULF POWER COMPANY, et al.,

Respondents.

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 SITE OWNERS AND

MANAGERS ALLIANCE OF THE PERSONAL

COMMUNICATIONS INDUSTRY ASSOCIATION

AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

DENNIS P. CORBETT

H. ANTHONY LEHV *

LEVENTHAL, SENTER

& LERMAN P.L.L.C.

2000 K Street, N.W.

Suite 600

Washington, D.C. 20006

* Counsel of Record (202) 429-8970

Counsel for the Site Owners and Managers Alliance of the

Personal Communications Industry Association

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

QUESTION PRESENTED

The Site Owners and Managers Alliance, a membership

division of the Personal Communications Industry

Association, will address only the second of the two questions

certified for consideration by the Court:

Whether the provisions of the Pole Attachments Act

apply to the attachment of wireless equipment as well as

to the attachment of wireline equipment.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED..............ccssssssssssssseeseeseseeseees

TABLE OF AUTHORITIEG ...............sccscssssssssssssssesseees

THE POLE ATTACHMENTS ACT DOES

NOT GOVERN ATTACHMENTS’ OF

WIRELESS EQUIPMENT TO UTILITY

A. Congress Only Intended The Term “Any

Attachment” In The PAA To Encompass

“Wire” Attachment, ...........scccsssesessesseseeees

B. Congress Did Not Extend The PAA To

Wireless Equipment When It Amended

The PAA To Apply To Attachments By

Telecommunications CarrierS............000«+

THERE IS A COMPETITIVE WIRELESS

EQUIPMENT SITING INDUSTRY; UTIL-

ITIES ARE NOT A “BOTTLENECK.”..............

A. A Competitive Market For Wireless

Equipment Attachments Thrives Without

Government Regulation Or Intervention. ....

1. The Private Tower Industry Has

Developed and Matured Through The

(iii)

ao w NY — <

10

14

14

15

iv

TABLE OF CONTENTS—Continued

2. The Wireless Equipment Siting

Industry Is Fundamentally Different

From The Wireline Siting Industry....... 20

B. No Government Regulation Of Wireless

Equipment Attachment Agreements Is

Necessary Or Justified. ..............ssssseseeeeeeees 22

C. The FCC’s Interpretation Of The PAA

Is Inconsistent With Congress’s Intent

To Deregulate The Communications

ENGUSULY. ...0020cecrerecrscrsersereerensencenssssessessososoes 25

CONCLUSION ........cccsccsssssssssseesserseensennssnsesssssesosssssensens 27

Vv

TABLE OF AUTHORITIES

CASES Page

American Hosp. Assoc. v. NLRB, 499 U.S. 606

| eT 13, 24

Bates v. Little Rock, 361 U.S. 516 (1960).............. 24-25

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

Council, Inc., 467 U.S. 837 (1984)........ 3, 5, 10-12, 24

City of Abilene v. FCC, 164 F.3d 49 (D.C. Cir.

FDP ccssancensesnsnasnsnsresensenemnsnsuesmmemesemmnaneentite 12

Deal v. United States, 508 U.S. 129 (1993)........... 8

FCC v. Florida Power Corp., 480 U.S. 245

ee 7

FDA v. Brown & Williamson Tobacco Corp., 529

ele BEEP Gee asenessssensneesnceremmnenemenemnnmnasients 11-12

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

ee 8

Gulf Power Co. v. FCC, 208 F.3d 1263 (1 1th Cir.

2000), cert. granted in part, __ U.S. __, 121 S.

Se Ge ercteneicenennieneenmamnisiees 3-4

Gustafson v. Alloyd Co., 513 U.S. 561 (1985)....... 11

MCI Telecomms. Corp. v. FCC, 512 U.S. 218

ITE Aa nnsonsnantenssenssenssteiuniemeunaesastmmegibitaniateenes 12-14, 20

Salinas v. United States, 522 U.S. 52 (1997)......... 13

Texas Utils. Elec. Co. v. FCC, 997 F.2d 925

A 4 a ae 6, 13,21

United States v. Southwestern Cable Co., 392

ee 7

STATUTES AND RULES

Communications Act Amendments of 1978, Pub.

MS 7) 8 4

Telecommunications Act of 1996, Pub. L. No.

8 ee 4, 25

47 U.S.C. § 153(44) (Supp. IV 1998) ..............00 12

47 U.S.C. § 153(46) (Supp. TV 1998) .......cccceccseoen 1,

vi

TABLE OF AUTHORITIES—Continued

Page

47 U.S.C. § 160(a) (Supp. IV 1998) .........cccccceeseees 26

47 U.S.C. § 160(b) (Supp. IV 1998) ..........ccccceeeees 26

47 U.S.C. § 224(a)(4) (1994 & Supp. IV 1998).....4, 6, 11

47 U.S.C. § 224(a)(6) (Supp. TV 1998)..........0000 12

47 U.S.C. § 224(b) (1994) .......cccccccesereessrersesnrneeeees 8

47 U.S.C. § 224(d) (1994 and Supp. IV 1998) ...... 5

47 U.S.C. § 224(d)(2) (Supp. IV 1998) .........cc000 8-9

47 U.S.C. § 224(e) (Supp. TV 1998) .........-cceceeeees 5

47 U.S.C. § 224(e)(2) (Supp. TV 1998)... 20

47 U.S.C. § 257(a) (Supp. TV 1998) ........ccccceeeeees 26

47 U.S.C. § 257(b) (Supp. TV 1998) .........cecceceeeeee 26

47 U'S.C. § 332(c)(7) (Supp. TV 1998)... 27

47 C.F.R. § 1.1301, ef seq. (2000) ........ccccccerseereeeee 23

47 C.F.R. § 17.1, et Seq. (2000) ......cccceeseereeeseenenees 23

47 C.F.R. § 21.117 (2000) ............cccccsecccccessreeessnees 21

47 C.F.R. § 73.315 (2000) ..0.......cccccesereeeerereseeeeeenes 21

47 C.F.R. § 73.3598 (2000) .........ccccceccseserreeeeeeeees 17

47 C.F.R. § 90.665 (2000) ...........ccccceeeeeeeseeeeneneees 17

ADMINISTRATIVE DECISIONS

Alabama Cable Telecomms. Assoc. v. Alabama

Power Co., 15 F.C.C.R. 17346 (Cable Servs.

CC UE 23

Amendment of Rules and Policies Governing

Pole Attachments, 15 F.C.C.R. 6453 (2000)...... 21-22

California Water and Tel. Co., 64 F.C.C. 2d 753

|, Se 7

Cavalier Tel., LLC v. Virginia Elec. and Power

Co., 15 F.C.C.R. 17962 (Cable Servs. Bur.

ee 23

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.

G77 (199B) ......ccecccrrsecscessercecsecsessccssesssosossosesees 4, 6,9, 20

vii

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIAL Page

H.R. Rep. No. 1630, 94th Cong., 2d Sess. 2

er ee ae ee a ee ae 9

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

ey CP erincetciaiciceeritcineatiiiiiiinietinen sitet 8, 10

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

a rer ee 13, 25.

H.R. Conf. Rep. No. 104-458 (1996), reprinted

in 1996 U.S.C.C.A.N, 109 ooocccccccccccccceseccseeeseeees 26

OTHER AUTHORITIES

Breyer, Judicial Review of Questions of Law and

Policy, 38 Admin. L. Rev. 363 (1986)............... 12

Fryer’s TowerSource Market Report 2001,

available at http://www.towersource.net/mar- .

a A csnstnsnctnsemnectsintiarsniarasiiaiinieaataais 15-16

IN THE

Supreme Court of the Anited States

Nos. 00-832 and 00-843

NATIONAL CABLE TELEVISION ASSOCIATION, INC.,

Petitioner,

Vv.

GULF POWER COMPANY, et al.,

Respondents.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

Petitioners,

Nv

GULF POWER COMPANY, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

LRIEF OF THE SITE OWNERS AND

MANAGERS ALLIANCE OF THE PERSONAL

COMMUNICATIONS INDUSTRY ASSOCIATION

AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

PRELIMINARY STATEMENT '

Pursuant to Sup. Ct. R. 37, the Site Owners and Managers

Alliance (“SOMA”), a membership division of the Personal

Communications Industry Association (“PCIA”), respect-

' Pursuant to Sup. Ct. R. 37.6, SOMA certifies that this brief was

authored entirely by counsel for SOMA 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

fully submits this brief, as amicus curiae, in support of

Respondents. In accordance with Sup. Ct. R. 37.3(a), this

brief is accompanied by the written consent of all parties.

INTEREST Of SOMA

SOMA is comprised of companies that build, acquire,

manage and develop communications towers, antenna

structures and other edifices where wireless equipment can be

sited. Within its members are four of the five largest national

builders and managers of commercial communications

towers. PCIA is a prominent national trade association for

the personal communications industry. Its mission is to

promote the development and continued vitality of personal

wireless products, manufacturers and providers. PCIA’s

general membership includes common carrier and private

paging companies; businesses licensed by the Federal

Communications Commission (“FCC”) to offer two-way

mobile wireless service, paging and messaging systems,

mobile data products, and network services; rCC licensees of

private, wireless systems, including transportation, insurance,

utilities and business radio systems; and developers of “third

generation” wireless technology and content.

SOMA believes that the FCC's ruling, that 1996

amendments to the Pole Attachments Act (“PAA”),

authorized the FCC to include wireless communications

attachments within the scope of its regulatory authority, is

erroneous. The FCC’s analysis mistakenly presumes that

utility poles comprise a significant portion of wireless siting

facilities and that these utility poles are a “bottleneck”

constraining the siting of wireless equipment. The FCC's

assumption is factually unsupported. There is a highly

competitive market devoted to siting wireless equipment and

SOMA’s members are principal competitors in this market.

By upholding the FCC’s analysis of the PAA, the Court

would sanction unnecessary and intrusive government

regulation in an area where the federal government does not

3

have a substantial interest. Such regulation goes impermiss-

ibly beyond the PAA’s purpose, to foster a competitive

environment, to ensure that limited facilities are available at

reasonable rates, and to eliminate monopolistic control over

elements essential to construction of a wired network. There

is no bottleneck for wireless communications equipment sites

as there is for wireline attachments by cable systems and

telecommunications carriers that must have access to utility

poles in order to provide services to the public. In fact, wires

used by wireless communications providers to connect to the

public switched telephone network benefit from PAA

provisions granting wires open access to the utility poles at

regulated rates.

As the association which represents a majority of the

publicly-traded companies in the private tower ownership

industry, SOMA has extensive knowledge that directly

pertains to the question presented in this case and that has not

already been submitted to the Court. SOMA may, therefore,

be uniquely helpful to the Court in exposing the flaws in the

FCC’s construction of the PAA and explaining the harmful

consequences of that holding.

SUMMARY OF ARGUMENT

When a federal agency construes a statute and the statutory

language and intent of Congress are clear, the agency has no

discretion to change the meaning, but instead “must give

effect to the unambiguously expressed intent of Congress.”

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 843 (1984) (“Chevron”). The Eleventh Circuit, in

Gulf Power Co. v. FCC, 208 F.3d 1263 (11th Cir. 2000), cert.

granted in part, _ U.S.__, 121 S. Ct. 879 (2001), held that in

construing the Pole Attachments Act (“PAA”), the FCC

failed to observe the clear intent of Congress, as required

under Chevron, and impermissibly read the PAA to

encompass wireless equipment attachments, as well as wired

attachments of telecommunications providers and cable

4

systems. /d. at 1273 and n. 21. Soma respectfully asserts that

this Court should affirm the Eleventh Circuit’s judgment.

Congress enacted the PAA in 1978. See Communications

Act Amendments of 1978, Pub. L. No. 95-234, 92 Stat. 33. It

was a narrowly-drawn statute that delegated to the FCC the

authority to ensure reasonable rates for cable systems seeking

to attach their cables to poles owned or controlled by

“utilities.” The PAA granted the FCC the right to regulate

“any attachment” by a cable system. Pub. L. No. 95-234, sec.

6, § 224(a)(4), 92 Stat. 33, 35 (1978) (codified, as amended,

at 47 U.S.C. § 224(a)(4)). It was apparent, however, using

common sense and traditional principles of statutory

construction, that in 1978 Congress intended the FCC only to

regulate wire attachments.

From 1978 until Congress amended the PAA as part of the

landmark, deregulatory Telecommunications Act of 1996,

Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered

sections of 47 U.S.C.) (“1996 Act”), there was apparently no

dispute as to the carefully circumscribed character of the

PAA. The 1996 Act amendments to the PAA extended its

protections to “any attachment” by cable systems and

telecommunications carriers. Pub. L. No. 104-104, § 703(3),

110 Stat. 56, 150 (1996) (codified at 47 U.S.C. § 224(a)(4)).

There is no indication that by expanding the universe of

entities whose wire attachments were to be regulated,

Congress also intended, without otherwise modifying he

statutory language, to fundamentally alter the scope of the

PAA to regulate wireless attachments.

The FCC nevertheless interpreted the PAA to gover

wireless equipment attachments. /mplementation 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. 6777, 6798-99 (1998) (“PAA

Order’). Even if the 1996 Act amendments to the PAA could

be deemed ambiguous with respect to wireless equipment

5

attachments, the FCC's interpretation is patently

unreasonable and is not entitled to deference under Chevron.

See 467 U.S. at 845. The PAA was enacted to eliminate

“bottleneck” access to utility poles, rights-of-ways, and

conduits that were critical to development of wireline

communications systems. These essential facilities were, and

are, controlled by “utilities.” By contrast, the market for

siting wireless equipment has long thrived and, in the absence

of intrusive and unnecessary government regulation, is

fiercely competitive. It is certainly not dominated by the

“utilities” that are regulated by the PAA.

Rather, the chief competitors in this wireless facilities

siting market are the members of SOMA and entities such as

the Wireless Industry Amici.? These companies own or

manage many of the towers, building walls and rooftops,

church steeples, chimneys, smokestacks, water towers and

other locations where wireless equipment can be attached.

Mandating access to the facilities of “utilities” by wireless

equipment users is not necessary and would thwart

Congress's goal of deregulating the communications industry

and encouraging a competitive marketplace, as expressed in

the 1996 Act.

Common sense also confirms that the FCC erred by

applying the PAA to wireless equipment attachments. The

basic pole attachment rate formula imposed by Congress

includes elements and concepts such as “usable space” that

are not readily applicable to wireless equipment or siting

facilities. See 47 U.S.C. § 224(d)-(e) (1994 & Supp. IV

1998). The differences between wireless and wireline

equipment attachments are so stark that the two cannot

” See Brief of Association For Local Telecommunications Services, AT

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

Inc., Wireless Communications Association International and XO

Communications as amici curiae in support of Petitioners.

6

readily be compared at all.’ Yet, the FCC’s interpretation of

the PAA would awkwardly force the wireline market rate

concepts onto the wireless market. The Eleventh Circuit

correctly overturned the FCC’s unjustified intrusion into the

relationship between the utilities and wireless equipment

users, and correctly decided that the FCC has no authority to

regulate wireless attachments. The Eleventh Circuit's judg-

ment should be affirmed.

ARGUMENT

I. THE POLE ATTACHMENTS ACT DOES NOT

GOVERN ATTACHMENTS OF WIRELESS

EQUIPMENT TO UTILITY POLES.

This brief addresses a single issue before this Court:

whether the provisions of the Pole Attachments Act (“PAA”)

govern attachments of wireless equipment to a “pole, duct,

conduit, or right-of-way owned or controlled by a utility.” 47

U.S.C. § 224(a)(4) (1994). The FCC held that Congress

intended to impose rate regulation on wireless equipment

attachments when it amended the PAA to expand the universe

of entities entitled to regulatory protection, from cable

systems to all providers of telecommunications services.

PAA Order, 13 F.C.C.R. at 6799.

This conclusion, offered by the FCC without analysis or

support in its administrative record, contradicts the plain

language of the PAA, is not supported by the legislative

history and is inconsistent with Congress’s goal of

>A wireline attachment generally consists of cables or wires and

associated equipment affixed to a pole. Texas Utils. Elec. Co. v. FCC,

997 F.2d 925, 928 (D.C. Cir. 1993). The PAA Order aptly characterized

wireless attachments as “includ{ing) an antenna or antenna clusters, a

communications cabinet at the base of the pole, coaxial cables connecting

antennas to the cabinet, concrete pads to support the cabinet, ground wires

and trenching, and wires for telephone and electric service.” 13 F.C.C.R.

at 6799.

7

encouraging natural market forces and competition in the

communications industry. The Court should affirm the

Eleventh Circuit’s holding that the FCC erroneously

interpreted the PAA to enlarge its regulatory reach.

A. Congress Only Intended The Term “Any

Attachment” In The PAA To Encompass

“Wire” Attachments.

Prior to the 1978 enactment of the PAA, the nationwide

build-out of cable television systems was still in its infancy.

Then, as now, cable systems depended on the ability to run

many miles of cable to and from headends to subscribers’

homes and businesses. Faced with prohibitive expense as

well as an inability to obtain necessary local governmental

consents to create an independent system of poles, ducts and

conduits to support these wires, cable television systems

leased space on poles from utility and telephone companies.

FCC v. Florida Power Corp., 480 U.S. 245, 247 (1987).

Because there were no reasonable siting alternatives, cable

systems lacked bargaining power and alleged that they

were forced to accept unreasonable terms offered by pole

owners. /d.

Cable systems and Petitioner NCTA sought relief from the

FCC, The FCC, however, concluded that it lacked the

authority to regulate the pole attachment contracts between

utility companies and cable systems because utility pole

attachments were outside of the FCC’s jurisdiction to regulate

“all interstate . . . communications by wire or radio.”

California Water And Tel. Co., 64 F.C.C. 2d 753, 758 (1977),

quoting United States v. Southwestern Cable Co., 392 U.S.

157, 173 (1968).

At least in part in response to the California Water and Tel.

Co. decision, Congress enacted the PAA. The PAA was

exceedingly narrow in scope and designed to remedy a single

problem: allegedly unfair contracting practices by monopoly

providers of wireline siting facilities. To address this discrete

governmental interest, Congress narrowly expanded the

FCC’s jurisdiction to ensure that in the absence of successful

negotiations, a cable system could obtain, through the FCC's

processes, reasonable rates and terms for its attachments to a

limited group of utility poles owned by a carefully

circumscribed set of utilities. 47 U.S.C. § 224(b)(1994). *

The PAA entitled cable systems to regulated rates for “any

attachment” on poles covered by the PAA. In construing this

critical statutory term, the meaning of the phrase “any

attachment” cannot be determined in isolation, a true

understanding of its meaning must be drawn from its

contextual usage. Deal v. United States, 508 U.S. 129, 132

(1993). Despite the breadth of the phrase “any attachment,”

it is apparent that Congress, the cable industry, the FCC and

utility companies universally understood that “any

attachment” by a cable system meant any “wire” attachment.

Congress is presumed to be aware of “existing law pertinent

to the legislation it enacts.” Goodyear Atomic Corp. v.

Miller, 486 U.S. 174, 185 (1988). Pursuant to this venerable

principle, this Court may presume that Congress was

cognizant of the industry’s construction of the term

“attachment” in 1978, and that it did not intend to apply the

term “any attachment” to wireless equipment when it enacted

or amended the PAA.

Other language in the original PAA buttresses this

perception. In Section 224(d)(2), Congress obligated the

FCC to calculate just and reasonable rates for pole

* Poles owned by federal or state governments, private companies,

railroads, cooperative utilities and poles not used “in whole or in part, for

wire communications,” were specifically excluded from the scope of the

PAA. The owners of these poles either had not attempted to obtain unjust

or unreasonable rates and terms, or they did not own a substantial number

of poles to which attachments were made. S. Rep. No. 95-580, at 18-19,

reprinted in 1978 U.S.C.C.A.N. 109, 126-27.

9

attachments with specific reference to “usable space” on a

pole, which is defined as “the space above the minimum

grade level which can be used for the attachment of wires,

cables and associated equipment.” 47 U.S.C. § 224(d)(2)

(1994). This concept, as recognized later by the FCC, PAA

Order, 13 F.C.C.R. at 6799, is difficult, if not impossible to

apply to the attachment of wireless equipment, which is

fundamentally distinct and consumes much more pole space

than wireline attachments. See, infra, at 20-22.

The legislative history of the PAA also is consistent with a

restrictive scope of the phrase “any attachment.” Prior to

enactment of the PAA, the FCC asked Congress to modify

the draft statute to eliminate language which would have

permitted it to regulate “any attachment for wire

communication.” The FCC was concerned that this language

was too broad, and that “under the proposed bill, the [FCC]

might be involved in assuring just and reasonable rates for the

use of poles by not only cable television system operators but

also by many other users of wire communications.” H.R.

Rep. No. 1630, 94th Cong., 2d Sess. 2 (1976) (emphasis

added). The FCC further opined that “if the legislative intent

of the bill is merely to remedy pole attachment problems

which are of importance to the cable television industry, then

its application should be so limited, preferably by inserting

the term ‘:able television system’ as defined by 47 C.F.R. §

76.5(a) in lieu of ‘wire communication.’” H.R. Rep. No. 1630

at 30-31.

Congress incorporated this more “limited” language into

the final version of the PAA, which strongly suggests not

only that Congress and the FCC understood that the PAA

applied only to wireline attachments, but that the PAA would

apply only to a particular class of wireline attachments—

those essential to the fledgling cable industry.’ It is also

* The Senate Report to the PAA explains that a pole attachment is “the

occupation of space on a utility pole by the distribution facilities of a

10

difficult to conclude that the FCC perceived its own

jurisdiction under the 1978 version of the PAA to encompass

wireless equipment attachments, as there is no discussion of

wireless equipment in the FCC -ulemakings implementing the

Statute.

Using well-settled principles of statutory construction,

SOMA has been unable to divine from the structure of the

PAA, its language or legislative history, that in 1978

Congress intended the term “any attachment” to include

wireless equipment attachments. The FCC’s current reading

of the PAA could be sustained only if there is clear

Congressional intent from the 1996 Act amendments to

expand the PAA to cover wireless equipment attachments.

No such Congressional intent exists.

B. Congress Did Not Extend The PAA To

Wireless Equipment When It Amended The

PAA To Apply To Attachments By

Telecommunications Carriers.

As part of the 1996 Act, Congress revised certain

provisions of the PAA. These revisions did not create an

ambiguity in the meaning of the term “any attachment.”

Consequently, there was no foundation under Chevron for the

FCC to undertake its own unrestrained interpretation of the

PAA at the expense of Congress’s expressed will. 467 U.S.

at 842-43.

cable television system—coaxial cable and associated equipment—. . .”

S. Rep. No. 95-580, at 2, reprinted in 1978 U.S.C.C.A.N. 109, 110. In the

Section By Section Analysis, Congress recognizes that a “pole

attachment” is the “attachment of the cables of a CATV system to a

pole...” Id., at 26, reprinted in 1978 U.S.C.C.A.N. at 134. See also Id.,

at 27, reprinted in 1978 U.S.C.C.A.N. at 135 (describing different rate

structures which would reimburse a utility for costs “it would not have

incurred but for the presence of CATV cables on its poles.”).

— i

The 1996 Act amendments modified the definition of a

“pole attachment” from “any attachment by a cable television

system” to “any attachment by a cable television system or

provider of telecommunications service.” 47 U.S.C. §

224(a)(4) (1994 & Supp. IV 1998). The term “telecommun-

ications service” is defined as “the offering of telecommun-

ications 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) (Supp.

IV 1998).

The obvious result of this textual modification was to

expand the universe of entities entitled to the benefit of

Tegulated rates for wire attachments to include providers of

telecommunications service as well as cable systems. In the

1996 Act, telecommunications providers were included in the

historical protections that the cable industry had enjoyed

under the PAA. If, however, the FCC’s reading of the 1996

Act amendments is correct, then this simple textual change

also would authorize a wholesale expansion of the universe of

the types of attachments that are governed by the PAA, an

expansion that would impose government regulation in the

place of a competitive wireless equipment siting industry.

The addition by Congress of the words “or provider of

telecommunications service” cannot sustain the weight of

interpretation that the FCC would have it bear. In analyzing a

statute and determining whether Congress “has directly

spoken to the precise question at issue,” Chevron, 467 U.S. at

842, a reviewing court does not confine itself to examining a

particular statutory provision in isolation. Instead, the court

views the provision in context and interprets the statute to

create a coherent regulatory scheme. Gustafson v. Alloyd

Co., 513 U.S. 561, 569 (1985). Importantly, a reviewing

court is guided by common sense in determining Congress's

will. FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 133 (2000) (“Brown & Williamson’).

12

There is plainly no evidence that Congress intended to alter

the well-defined scope of the term “any attachment” in 1996,

let alone to achieve an alteration by modifying an ancillary

part of the definition of “pole attachment.” See City of

Abilene v. FCC, 164 F.3d 49, 52-53 (D.C. Cir. 1999). The

definition of “telecommunications service,” upon which the

FCC’s entire argument is premised, is a general definition,

applicable throughout the Communications Act. It is not

likely that Congress would have effected a sea change in the

scope of the PAA merely by including in one of its

definitions a term that applies generally throughout the

Communications Act.° When Congress wanted a general

provision of the Communications Act to have a different

meaning in the PAA, as it did with “telecommunications

carrier,” it specifically set forth the alternate definition.

Compare 47 U.S.C. § 153(44) (Supp. IV 1998), with 47

U.S.C. § 224 (a)(6) (Supp. [V 1998).

The change ascribed by the FCC to the new language also

is not minor, nor does it involve mere “interstitial” gap-filling

by the FCC. See Brown & Williamson, 529 U.S. at 159,

citing Breyer, Judicial Review of Questions of Law and

Policy, 38 Admin. L. Rev. 363, 370 (1986). The change

strikes at the very heart of the justification for the PAA and

would stretch the PAA far beyond its original purpose of

regulating only a narrow class of wire attachments. As this

Court stressed in MCI Telecomms. Corp. v. FCC, 512 US.

218, 229 (1994) (“MCT”), in the similar context of telephone

rate regulation, it is improbable that Congress would leave to

the FCC’s Chevron discretion the determination of whether a

portion of an entire industry would be regulated. MCI, 512

U.S. at 231. It is even less likely that Congress would have

153 of the Communications Act, the general definition provision, and not

in Section 224(a), where the remaining terms which apply specifically to

pole attachments are defined.

13

achieved this substantial result through such a “subtle”

revision as adding the term “telecommunications service,”

rather than through explicit language or without a clear

indication in the legislative history. American Hosp. Assoc.

v. NLRB, 499 U.S. 606, 613-614 (1991).

The dominant purpose of the 1996 Act was to promote

competition by lowering entry barriers for entrepreneurs and

to encourage existing telephone, utility and cable companies

to compete in each other’s core businesses. H.R. Rep. No.

104-204, at 47-55 (1996), reprinted in 1996 U.S.C.C.A.N. 10,

11-18. In this context, the amendment to Section 224(a)(4) of

the PAA merely ensures that the wireline attachments of

competitors to existing cable or telecommunications

franchises (such as Open Video Systems) will be entitled to

the same wire attachment rates and accessibility as are

currently enjoyed by cable companies providing traditional

cable video service or non-traditional telecommunications an

services. See Texas Utils. Elec. Co. v. FCC, 997 F.2d 925

(D.C, Cir. 1993).

When Congress amended the P.\A, it did not enlarge the

original, circumscribed, meaning of the term “an

attachment” to encompass wirviess equipment attachments.

In the absence of such a modification, there was no basis for

the FCC to divine a Congressional intent to transform the

fundamental nature of the PAA—a statute governing wired

attachments. The Eleventh Circuit appropriately rejected the

FCC’s interpretation of the 1996 amendments to the PAA and

that conclusion should not be disturbed.

” A restrained construction of “any attachment” is sensible because the

PAA is not an expansively drawn act meant to encompass all types of

conduct—it applies to a narrow class of attachments and to a

circumscribed class of poles and ducts. See Salinas v. United States, 522

U.S. 52, 56-57 (1997).

14

ll. THERE IS A COMPETITIVE WIRELESS

EQUIPMENT SITING INDUSTRY; UTILITIES

ARE NOT A “BOTTLENECK.”

If there were an ambiguity in the scope of the definition of

“any attachment” in the PAA, thereby entitling the FCC to

undertake its own interpretation, a court is not obligated to

defer to that interpretation if it is not reasonable. See MCI,

512 U.S. at 229. The FCC’s construction of the phrase “any

attachment” to encompass wireless equipment siting is not

reasonable. It proceeds from a erroneous factual basis and

defies common sense. The Eleventh Circuit rightly refused

to defer to the FCC’s construction of the statute.

A. A Competitive Market For Wireless

Equipment Attachments Thrives Without

Government Regulation Or Intervention.

The PAA was enacted to address a discrete problem, the

use of monopoly market power by utility companies in

negotiating contracts by which cable systems gained access to

utility poles for their wires, cables and associated equipment.

These poles are vital to the build-out of a wired cable system

and, today, as in 1978, there is no functional equivalent.

Because cable systems must attach wires to “utility” poles,

government intervention into this impaired competitive

market was both reasonable and necessary. As a practical

matter, like cable system wires, telecommunications wires

must be strung on an extensive network of poles in order

deploy an adequate network.

There is no corresponding “bottleneck” for the siting of

wireless antennas and associated equipment. Wireless

communications equipment uses the spectrum to radiate

signals through the air. Accordingly, users of this equipment

enjoy ample siting alternatives. Wireless equipment may be

sited on free-standing dedicated communications towers

(including monopole towers and self-supporting towers),

15

building walls and rooftops, church steeples, chimneys,

smokestacks, water towers, billboards, highway light

structures, and, of course, utility poles.”

Precisely because wireless equipment can be sited in

myriad locations, there is a thriving market for the provision

of this space. In response to the increasing demand for sites

for wireless equipment, an entire industry has developed to

create, maintain, and service the siting of wireless equipment

- for telecommunications providers.

1. The Private Tower Industry Has

Developed and Matured Through The

Past Decade.

In the past decade, the ownership of communications

towers—the principal location for wireless equipment

attachments—has undergone a radical transformation. Until

recently, virtually all towers dedicated to wireless commun-

ications or broadcast radio and television transmissions were

owned by FCC licensees that concurrently utilized space on

those towers. Those towers generally were built by tower

construction companies for wireless equipment users or by

the users themselves.

Since the early 1990s, this trend has begun to reverse. A

variety of circumstances has contributed to this change. For

example, under increasing pressure from their stockholders to

maximize profits and trim costs, certain wireless service

providers have resolved to focus on their core business of

operating communications systems and have turned away

* According to Fryer’s TowerSource Market Report 2001, a reputable

industry publication, there are an estimated 201,000 usable

communications towers in the United States. Fryer’s estimates that there

are another 55,000 viable rooftop sites available for siting wireless

equipment, as weil as numerous other usable sites located on other

edifices. See www.towersource.net/market_analysis.html.

16

from the ownership and construction of towers, becoming

tenants instead.

Concurrently, tower construction companies and other non-

FCC licensees recognized that the rapidly burgeoning

wireless communications industry would need numerous

antenna sites in order to build out their networks and that

operating these sites could be a profitable~enterprise. These

companies began to take the place of the carriers as major

providers of wireless communications sites. _SOMA’s

membership is comprised of these types of companies, whose

core business is constructing, owning and managing

dedicated communications towers and other locations where

wireless equipment can be sited.

Today, SOMA’s members own or manage thousands of

sites nationwide and contribute essential facilities to the

wireless communications infrastructure.” But SOMA’s mem-

bers are by no means the only competitors. Federal, state and

local governments, numerous “mom and pop” tower

companies, the Respondent utility companies, building and

billboards owners, other independent owners of locations to

which equipment can be attached and, significantly, the

Wireless Industry Amici, see n. 2, supra, all compete for a

share of the multi-faceted wireless equipment siting market.

Tenants at wireless attachment sites include mostly cellular

telephone, PCS, or paging companies, although other

categories of tenants, including radio and television

broadcasters, advanced wireless internet providers, businesses

that transmit signals via spectrum between fixed antenna

locations, and local government public safety users

commonly rent space.

*Fryer’s estimates that tower companies of all sizes own

approximately 40% of the estimated 201,000 communication towers

nationwide, while communications carriers own roughly 18%,

governmental units own about 10%, and utilities are estimated to own

3.4% (7,000) of those towers. See www.towersource.net/market_analysis.

html.

17

The largest private tower companies are publicly held, with

their stock traded on national exchanges. They tend to be

heavily leveraged, at least in part so that available funds can

be used to facilitate rapid growth. Unlike some other

competitors for wireless attachments, SOMA’s members’

core business is generating revenue from leasing and

managing communications sites. They also generate

substantial revenues from network development—

transactions in which a tower company partners with a

wireless provider to develop an entire wireless network

infrastructure in a particular locality. The tower company

typically is intimately involved at each stage of the complex

network design and planning.

The past five years have been particularly significant for

SOMA’s members and the wireless communications siting

field, in general. During this period the FCC has authorized ~

myriad new wireless services and granted additional licenses

for traditional wireless providers. These licenses typically

have strictly enforced and relatively abbreviated construction

timetables. See, e.g., 47 C.F.R. § 73.3598 (2000) (mandating

three-year construction period for broadcast radio and

television stations; extensions granted only in two narrow

circumstances); 47 C.F.R. § 90.665 (2000) (establishing five-

year construction deadline for 900 MHZ specialized mobile

radio licensees). The wireless equipment siting industry has

adapted and grown to offer service to these potential tenants.

Within SOMA’s membership, there has been enormous

growth and consolidation. The two principal growth

strategies for SOMA’s members are new construction and the

acquisition of existing towers. Each of these strategies has

been, and continues to be, heavily dependent on the

participation of and, thus, the economic success of, wireless

communications providers, including the Wireless Industry

Amici.

18

Each year, SOMA’s members construct thousands of new

communications towers. These towers will generally

accommodate six to eight users and follow one of two

scenarios, referred to in the industry as “build to fill” and

“build to suit.”

A “build to fill” tower is erected before an “anchor” tenant

or other users have contracted for space on the tower. These

towers are sited in strategically desirable locations, usually

along major and secondary roadways or in growing

communities with high population density and significant

commuting. Tower companies use sophisticated mapping

and analysis techniques to choose “build to fill” sites.

Under a “build to suit” program, a tower company erects a

structure at the behest of an “anchor” tenant, usually a

wireless service provider, at a site determined by the tower

company within a narrow radius (search ring) of a set of

specific geographic coordinates designated by the provider.

The tower company retains ownership of the facility and the

exclusive right and discretion to add other tenants to the

tower. A key.component of most “build to suit” deals is that

the wireless provider will negotiate a long-term lease for

space on each tower at a reasonable rental rate as determined

by the marketplace and the tenant. Tower companies may

also negotiate for the right to build all of the towers needed

for a particular wireless telecommunications provider's

systems on a going forward basis. This continuing

relationship is an important aspect of the businesses of

SOMA’s members.

The other common avenue for tower company growth is

the acquisition of existing towers, by which a tower portfolio

can be amassed rapidly. While most acquisitions involve

only a few towers (because there are few entities that own

extensive clusters of towers) the key acquisitions for SOMA’s

members are those from wireless communications providers,

in which hundreds or thousands of towers are purchased at

ee

= --

19

one time. In fact, transactions with carriers, including the

Wireless Industry Amici, have been the principal source of

growth of the tower industry.'°

In these arms-length transactions, wireless providers

frequently negotiate beneficial terms, including long-term

leases at reasonable rates and favorable location of their

equipment at optimal heights on the towers. Consideration

for these transactions may include stock or other interests in

the tower company, which encourages the provider to

continue to work with a particular tower owner.

In addition to their acquisition programs, SOMA’s

members enter into management and __lease/sublease

agreements with wireless providers. In these transactions, the

wireless provider retains ownership of the towers and utilizes

space on them, but the tower company contracts to oversee

maintenance, upkeep and most other business and regulatory

responsibilities, in exchange for the right to market and lease

remaining space on the tower and retain all or most of the

related rental income.'' A similar scenario exists for the

siting of equipment on non-tower structures such as building

rooftops and municipal water towers.

The wireless equipment siting industry, exemplified by the

members of SOMA, continues to mature and develop. It is a

fiercely competitive industry and SOMA’s members have

invested heavily and devised complex business plans to

survive competition not only from each other, but from

numerous other tower owners.

'” Not only are wireless communications providers the primary tenants

of SOMA’s members, they are also significant competitors. Despite their

recent sales of towers to SOMA members and other tower companies,

wireless providers still own or control thousands of towers, see n. 9,

supra, and are usually larger and better capitalized than tower companies.

'' SOMA’s members also manage towers, rooftops and other sites for

building owners, utilities, and other land owners. These agreements

usually parallel management agreements for traditional towers.

20

It is difficult to reasonably conclude, in light of these facts,

that Congress could have intended, without so much as a

word in the 1996 Act amendments to the PAA or the

legislative history, to intrude on this competitive market in

the manner suggested by the FCC’s interpretation of the

PAA. MCI, 512 U.S. at 231. Upholding the FCC’s

construction would create a particularly anomalous result,

given that “utilities” (as defined in the PAA) are not major

competitors in the market for siting wireless equipment. See,

e.g., n. 9, supra. Indeed, if wireless communications

providers had believed that utility poles presented a

bottleneck to the construction of their service areas, or that

tower owners could present such a bottleneck, they never

would have consigned their infrastructure inventory to third

parties. Once again, the facts and common sense combine to

highlight the FCC’s gross misinterpretation of the PAA.

2. The Wireless Equipment Siting Industry

Is Fundamentally Different From The

Wireline Siting Industry.

The FCC’s construction of the PAA suffers from anviher

important flaw. The FCC assumes that concepts applicable to

wire attachments easily translate to the wireless arena. But

the two types of attachments are separate and distinct. For

example, in amending the PAA, Congress specifically applied

the concept of “usable space” to attachments by a “provider

of telecommunications service” through the rate formula

established in Section 224(e). 47 U.S.C. § 224(e)(2) (Supp.

IV 1998). This concept is challenging to apply in the context

of wireless equipment attachments because of significant

differences between the size of wired and _ wireless

attachments. See PAA Order, 13 F.C.C.R. at 6799

(acknowledging that applying rate rules to wireless

attachments may engender “potential difficulties” because of

“unusual requirements” of wireless equipment).

21

Traditional wire attachments (both cable and

telecommunications) may consist of “coaxial or fiber optic

cable and associated equipment. . . . The cables are lashed to

an aerial support strand, which in turn is affixed to a single

point within the section of the pole designated as

‘communications space.’” Texas Utils. Elec. Co. v. FCC, 997

F2d 925, 928 (D.C. Cir. 1993). These cables are presumed to

occupy one foot of “usable space” cn a pole, although the

actual wire only occupies approximately one inch, with the

remaining space serving as protective clearance from

electrical or other wires. Amendment of Rules and Policies

Governing Pole Attachments, 15 F.C.C.R. 6453, 6466 (2000)

(“Attachment Order’).

By contrast, it is the experience of SOMA’s members that

the average wireless attachment consists of either a long

“whip” antenna attached directly to a tower, or a panel, dish

or horn-shaped antenna attached by grappling clamps to an

arm mount or platform on a tower.'? Each antenna has two

Separate associated cables. Coaxial cable attaches to the

transmitter or other powering source, which is usually housed

in a large cabinet or small building on site. A separate power

cord from the antenna connects to the public electric system.

Panel antennas are commonly at least four feet high (with an

additional ten feet needed for separation due to signal

interference concerns), while a “whip” antenna may be from

six to twelve feet in length. Microwave dishes and horn

- Many wireless communications systems need “line of sight”

coverage for their services to function effectively. See, e.g., 47 C.F.R.

§ 21.117 (2000) (domestic fixed public radio); 47 C.F.R.

§ 73.315 (2000) (FM broadcast stations). The height of the placement of

the antenna is a critical factor in achieving this coverage. Accordingly,

the uppermost sections of a communications tower, which are usually

above the tops of utility poles, are more valuable and preferred by

SOMA’s tenants.

22

antennas may be up to fifteen feet in diameter.’ This

elemental difference between types of attachments, which

distorts the “usable space” concept, is further evidence that

the FCC strayed from Congress’s intent in construing the

1996 Act amendments to the PAA.

B. No Government Regulation Of Wireless

Equipment Attachment Agreements Is

Necessary Or Justified.

The market for siting wireless communications attachments

historically has not been subject to government regulation as

it pertains to the source of siting opportunities. Nothing in

the PAA, its legislative history, the FCC’s public comment

process leading to the PAA Order, or the current functioning

of the market indicates that a different regulatory treatment is

suddenly warranted.

First, from a competitive perspective, there is no single

entity or type of entity (such as utilities) that is, or could be, a

“bottleneck” for the siting of wireless communications

equipment. There are simply too many available locations in

which to site this equipment for a single company or type of

provider to exert the monopoly power that utilities were

alleged to have in the wired arena.

"The inherent differences in the sizes of wireless and wired

attachments account, in part, for the vast discrepancy in the size of utility

poles and communications towers. Utility poles are typically of uniform

height. The FCC, in applying the PAA’s rate regulation scheme,

presumes that a utility pole is 37.5 feet in height and contains 13.5 feet of

“usable space” for attachments. Attachment Order, 15 F.C.C.R. at 6465-

66. Towers used for wireless attachments vary considerably in height,

with the tallest exceeding 2000 feet above ground and the average tower

reaching 200-250 feet above ground. Virtually all of the space on a

traditional tower is usable for attachments, subject to spacing between

equipment necessitated by radio frequency radiation interference

concerns.

23

Second, wireless telecommunications providers do not face

unfair bargaining, nor are they forced to accept contracts of

adhesion from utility companies regulated by the PAA in

order to obtain access to usable sites for their wireless

facilities. Indeed, because wireless providers are a primary

and vital source of income for owners of communications

towers and other equivalent structures, they are able to

negotiate favorable lease terms and reasonable rates, as

defined by the marketplace and not through government

regulation. '*

Third, wireless equipment attachments historically have

been subject to far more limited and lenient regulatory

treatment by the federal government. The FCC may review a

proposed communications site for compliance with certain

federal statutes such as the National Environmental Policy

Act and the National Historic Preservation Act, see 47 C.F.R.

§ 1.1301, et. seqg., and the FCC’s various regulations

concerning radio frequency radiation and air safety, see 47

C.F.R. § 17.1, et seg., However, the FCC traditionally has

not otherwise regulated the relationship between owners of

wireless equipment and owners of sites upon which to attach

that equipment.

'* There is a stark difference between the fair market value for wireless

and wire attachments. In the past year, the FCC’s Cable Services Bureau

has approved “just and reasonable” annual lease fees for one foot of

usable space of $7.47 per pole, Alabama Cable Telecomms. Assoc. vy.

Alabama Power Co., 15 F.C.C.R.17346 (Cable Servs. Bur. 2000), and

$5.12 per pole, Cavalier Tel., LLC v. Virginia Elec. and Power Co., 15

F.C.C.R. 17962 (Cable Servs. Bur. 2000). By contrast, in the experience

of SOMA’s members, the average monthly lease rate for a wireless

equipment attachment on a traditional communications tower is

approximately $1,500, with additional charges for utilities consumed by

the tenant. The lease rates for traditional towers are significantly higher

than the rates for wire attachments because of factors such as the cost of

constructing towers, their geographic location, the number of actual and

potential users of the towers, the desirability of the location of the tenant's

equipment on the towers, and the identity of the attaching party.

24

Fourth, to SOMA’s knowledge, no wireless telecommun-

ications provider has ever complained to the FCC or sought

regulatory relief due to a lack of usable sites or an inability to

secure either fair market leasing rates or sufficient space on

wireless siting facilities or utility poles. Indeed, it is unlikely

that wireless carriers would have disposed of, and continue to

sell off their tower portfolios if they believed it would result

in their being subjected to unreasonable leasing rates or

terms. In any event, the wireless equipment market continues

to thrive and expand as the use of wireless communications

devices and needs of wireless providers increases.

Neither the text nor legislative history of the PAA

addresses, much less contradicts, this understanding of the

market for wireless equipment siting. The PAA Order

implementing the FCC’s interpretation of the 1996 Act

amendments to the PAA does not cite any evidence or public

comment establishing that utilities are “bottlenecks” for

wireless equipment siting or that the utilities have engaged in

unfair bargaining for such attachments. The FCC’s decision

on this point contains little analysis at all. See American

Hosp. Assoc. v. NLRB, 499 U.S. at 618 (noting the extensive

rulemaking conducted and careful analysis of comments and

well-reasoned justification of new rule undertaken by NLRB

as partial grounds for upholding rule).

In light of the foregoing examination of the state of the

wireless equipment siting market, the FCC’s decision to

extend the PAA to wireless equipment attachments stands as

a remarkable refutation of market principles in favor of

intrusive and far-ranging government regulation. By con-

struing the term “any attachment” to include wireless

equipment, the FCC unreasonably abandoned common sense

and the historical regulatory restraint afforded this market.

Consequently, no deference to this interpretation is necessary.

Chevron, 467 U.S. at 842. Cf. Bates v. Little Rock, 361 U.S.

516, 525 (1960) (governmental action must bear some

a

25

reasonable relationship to achieving the governmental

purpose asserted as justification for the regulation).

C. The FCC’s Interpretation Of The PAA Is

‘ Inconsistent With Congress’s Intent To

Deregulate The Communications Industry.

The 1996 Act was a landmark statute, touching, or altering,

numerious aspects of the underlying Communications Act of

1934. The 1996 Act’s unifying principle is to encourage

market forces and competition and abridge or abolish

governmental intrusion on functioning markets. H.R. Rep.

No. 104-204, at 47-55 (1996), reprinted in 1996

U.S.C.C.A.N. 10, 11-18. Congress expressed this preference

for competition throughout the 1996 Act.

For example, Congress eliminated the national broadcast

ownership caps and substantially relaxed the local ownership

rules. Pub. L. No. 104-104, § 202 (1996) (directing FCC to

adopt statutorily-imposed changes to ownership rules). In the

cable arena, it established a sunset date for federal regulation

of certain cable rates, clarified the right of incumbent

providers to petition for a determination of effective

competition to eliminate all rate regulation, Pub. L. No. 104-

104, § 301 (1996) (codified at 47 U.S.C. § 543), and

promoted the development of DBS and other satellite-

delivered programming as competition to cable by prohibiting

restrictions on the siting of over-the-air reception devices.

Pub. L. No. 104-104, § 704 (1996) (codified at 47 U.S.C. §

332(c\(7)).

Most notably, Congress enacted a complex series of

provisions to encourage competition in the local and long

distance telephone markets by both new entrants and other

companies (including cable systems and utilities). Section

257(b) of the Communications Act, adopted as part of the

1996 Act sets forth the “National Policy” on communications

competition that “the [FCC] shall seek to promote the policies

26

and purposes of the [Communications] Act favoring diversity

of media voices, vigorous economic competition,

technological advancement, and promotion of the public

interest, convenience, and necessity.” 47 U.S.C. § 257(b)

(Supp. IV. 1998). The House Conference Report explains

that the 1996 Act was designed to “provide for a

procompetitive, de-regulatory national policy framework

designed to accelerate rapidly private sector deployment of

advanced telecommunications and information technologies

and services to all Americans by opening all

telecommunications markets to competition, and for other

purposes.” H.R. Conf. Rep. No. 104-458, at 113 (1996),

reprinted in 1996 U.S.C.C.A.N. 10, 124.

To effectuate this policy, Congress directed the FCC to

identify and eliminate entry barriers for entrepreneurs and

other small businesses in the provision and ownership of

telecommunications or information services. 47 U.S.C. §

257(a) (Supp. IV 1998). Congress further ordered periodic

reviews of the FCC’s regulations to continue to eliminate

market entry barriers and for the FCC to recommend to

Congress statutory provisions that might be eliminated to

encourage competition. /d.

As yet a further spur to competition, Congress enacted a

forebearance policy, ordering the FCC to not apply any

regulation or any provision of the Communications Act to “a

telecommunications carrier or telecommunications service” if

the FCC concludes that enforcement of the provision is not

needed to ensure just and reasonable and non-discriminatory

rates and practices. 47 U.S.C. § 160(a) (Supp. IV 1998). In

making that determination, the FCC is required to consider

whether forbearance will “promote competitive market

conditions” and “enhance competition among providers of

telecommunications services.” 47 U.S.C. § 160(b) (Supp. IV

1998).

27

Congress also enacted restrictions on the ability of state

and local governments to thwart the development of new

communications sites through a national wireless equipment

siting policy, 47 U.S.C. § 332(c)(7) (Supp. IV 1998). Against

the backdrop of this unambiguously deregulatory scheme, the

FCC adopted an interpretation of the 1996 Act amendments

to the PAA which has the direct effect of substantially

increasing government intrusion and regulation of a market

which, by all available evidence, functions effectively. The

FCC's decision is unequivocally inconsistent with the general

approach to competition dictated by Congress and the specific

textual limitations on the scope of the PAA set forth in that

statute.

CONCLUSION

For the foregoing reasons, SOMA respectfully requests that

the Court affirm the holding of the Eleventh Circuit, a

decision which adheres to Congress’s intent as expressed in

the 1996 Act amendments to the PAA, is consistent with

Congress's desire to deregulate the communications industry,

and respects the economic and practical distinctions between

the markets for siting wireline equipment and wireless

equipment.

Respectfully submitted,

DENNIS P. CORBETT

H. ANTHONY LEHV *

LEVENTHAL, SENTER

& LERMAN P.L.L.C.

2000 K Street, N.W.

Suite 600

Washington, D.C. 20006

* Counsel of Record (202) 429-8970

Counsel for the Site Owners and Managers Alliance of the

Personal Communications Industry Association