U.S. Court of Appeals for the D.C. Circuit Affirms FCC Pole Attachment Ruling in Favor of Cable Industry


Court Rejects Gulf Power’s Constitutional “Just Compensation” Challenge to Pole Attachment Rental Rates

On Feb. 21, 2012, the United States Court of Appeals for the D.C. Circuit issued its opinion in Gulf Power Co. v. FCC summarily denying the electric utility’s challenge that the federal statutory rental rate for cable company attachments to utility poles fails to provide “just compensation” in violation of the Fifth Amendment’s Takings Clause. The court’s opinion thus affirms the Federal Communications Commission's (FCC) 2011 Decision in favor of Florida Cable Telecommunications Association, Comcast, Cox, Brighthouse and Mediacom.

The court’s ruling is the latest win for the cable industry defending the constitutionality of the Pole Attachment Act and related FCC rules as well as recent pole reforms. This dispute began when Gulf Power sought a pole attachment rate more than five times the maximum allowed under the FCC formula for cable attachments. Gulf Power claimed its poles were at “full capacity” and that other buyers were willing to pay a higher rate, the two circumstances the 11th Circuit had held in a related case (Alabama Power v. FCC) were necessary before a pole owner could collect higher pole rents on a “just compensation” theory.
 In the agency proceedings, an FCC Administrative Law Judge (ALJ), and then the full Commission, found Gulf Power had not met its burden of proving full capacity because routine make-ready could have been and was used to accommodate additional attachments. The FCC and ALJ also found Gulf Power failed to prove there were any other attachers precluded from attaching, or that Gulf Power was foreclosed from putting the space to a higher valued use for its own operations.

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:


Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.