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In October 2001, the U.S. Supreme Court will hear an appeal by the National Cable Television Association and the Federal Communications Commission (FCC) of a decision pertaining to price regulation of Internet access via traditional cable lines. FCC v. Gulf Power Co. The high court announced Jan. 22 it would take the case. In September 1999, the 11th Circuit U.S. Court of Appeals — in refusing to hear the FCC’s appeal — held that because the Internet has not been defined as a cable service, the FCC cannot regulate its prices. The case is expected to have major implications for the way broadband Internet service is delivered through traditional cable lines. The 1996 U.S. Telecommunications Act requires that utility companies, like plaintiff Gulf Power Co., offer space in rights-of-way for rent to telecommunications and cable companies. According to the appellate decision, the act established as code a common business practice of renting pole space where secondary access was impossible. Under the terms of the law, the FCC — in the absence of an agreement between a utility and a renter — may set rental rates. Gulf, after learning that Cablevision of Panama City, Fla., had begun to carry Internet traffic along with its regular cable traffic, raised rents from $5 to $38 per pole, according to the decision. RATES CAPPED The FCC, acting in its capacity as mediator under the Telecommunications Act, capped Gulf’s rates at $7 per pole — prompting the utility to file suit in July 1996. The District Court found in favor of the utility by ruling that rent regulation by the FCC constituted an unconstitutional “taking” in violation of existing due process rights. In granting certiorari, the Supreme Court limited argument to two questions: �Whether provisions of the Pole Attachments Act apply to attachments by cable television systems that are simultaneously used to provide high-speed Internet access and conventional cable television programming. �Whether provisions of the Act apply to attachments of providers of wireless telecommunications services no less than to attachments by providers of wireline telecommunications services. The case, which began with just a single Florida plaintiff, now includes utility power companies in Alabama, Georgia, Mississippi, Ohio and North Carolina. Cable providers acting as amici in the case now include National Cable, and cable telecommunications associations in Alabama, Florida, Georgia, Maryland, Delaware, the District of Columbia, Mississippi, Ohio and Texas. The utilities are represented by Ralph Alan Peterson of Beggs & Land in Pensacola, Fla., John Russell Campbell, Suzanne Alldredge, Karl Moor and S. Allen Baker of Balch & Bingham in Birmingham, Ala., and Richard E. Jones and Walter Steimel of Hunton & Williams in Raleigh, N.C. The FCC is represented by Theodore C. Hirt and Brian G. Kennedy of the U.S. Department of Justice and Richard J. Metzger of the Association for Local Telecommunications Service, both in Washington, D.C. � Copyright 2001 Mealey Publications, Inc.

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