WASHINGTON, Oct. 2 (UPI) -- The Supreme Court heard argument Tuesday on a key element of high-speed Internet and wireless access.
At issue in the case, in part, is whether the Federal Communications Commission can regulate the prices utility companies charge cable television systems to hook onto utility poles to provide such high-speed Internet access.
Also at issue is whether the FCC can regulate the prices utilities charge for wireless communications attachments to utility poles.
The outcome of the case could have a direct impact on how much the consumer pays for high-speed Internet and wireless communications.
First the Clinton administration, and now the Bush administration contends that without FCC regulation, the utility companies can charge whatever rates they want.
That could be "$50, $100, $1,000," Assistant U.S. Solicitor General James Feldman told the justices during argument Tuesday.
The FCC has regulatory authority under the federal 1978 Pole Attachment Act to make sure utilities, such as electric and telephone companies, charge cable systems rates for hook-ups that are "just and reasonable."
Cable television revolutionized how Americans receive home entertainment, and the phenomenon has steadily grown since the 1950s, when most homes received a TV signal through an antenna. Today, about 7 out of 10 households with television, around 65 million, subscribe to cable TV service in the United States.
The technological landscape changed again in the 1980s when it became possible for cable systems to provide a number of services, including computer access to the Internet.
The lines in the current rate battle began to form in that decade. In addition to an annual $5 charge for each cable TV hook-up, some Texas utilities tried to impose a surcharge of between $50 and $100 for "non-video communications," and the FCC asserted itself.
The commission ruled federal law allowed it to regulate the price charged for "any attachment" to a utility pole, regardless of the type of service involved. The FCC's interpretation was upheld in a federal court in Washington.
However, Congress passed a new Telecommunications Act in 1996 that restructured markets in a variety of communications industries across the county, and included changes that affected the Pole Attachment Act.
Though the FCC evaluated the new law, it still concluded it had the authority to regulate charges for any type of utility pole connections.
However, utility companies all over the country appealed that FCC conclusion in a number of lawsuits in a variety of jurisdictions.
Those separate challenges were consolidated in the U.S. Court of Appeals for the 11th Circuit, headquartered in Atlanta. A divided appeals court panel in Atlanta agreed with the utility companies and ruled the FCC's interpretation was incorrect.
The panel majority said the Internet was not a "cable service" as defined by federal law, and therefore the FCC had no authority under the law "to regulate the Internet as a telecommunications service."
The National Cable Television Association and the FCC then asked the Supreme Court to intervene.
The justices agreed, but limited their review to two questions: Whether provisions allowing FCC regulation of charges in the Pole Attachment Act "apply to attachments by cable television systems that are simultaneously used to provide high-speed Internet access and conventional television programming," and whether those provisions apply to "wireless telecommunications services" as well.
In argument on the case Tuesday, Justice Antonin Scalia noted the FCC has not determined whether the Internet is a "telecommunications" service or whether it is a cable service -- the two services specifically mentioned by the Pole Attachment Act.
Scalia was echoed by Justice David Souter, who questioned whether the Supreme Court should just send the case to the FCC with an order to "come to grips with this and tell us under which provision (of the Pole Attachment Act) you're operating," telecommunications or cable.
Assistant Solicitor General Feldman responded by saying it did not really matter. "The FCC doesn't pretend to have authority over Internet access," only cable attachments, he said.
Feldman was supported by Washington attorney Peter Keisler, representing the cable TV industry.
Speaking for the utility companies, Washington attorney Thomas Steindler told the justices the FCC was simply reading the statute incorrectly.
Steindler said the FCC stops reading the law when it says the commission has the authority to set rates for "any attachment" to the poles.
Those "any attachments" later are defined in the act as cable TV and telecommunications hookups, he said, not high-speed Internet and wireless communications.
"They have to read the whole statute," Steindler argued. "It tells you what 'any attachment' means."
The justices should hand down a decision in the case sometime within the next couple of months.
(No. 00-832, Nat'l Cable TV Assn vs. Gulf Power et al; 00-843, FCC et al vs. Gulf Power et al)
