When U.S. Supreme Court hears arguments Tues. on pole attachments...

When U.S. Supreme Court hears arguments Tues. on pole attachments, justices are expected to wade into debate over open access. One hour of oral argument will pit FCC and NCTA against Gulf Power, defendant representing various utilities that filed suit around country. Question is whether Commission has authority to regulate rates utilities can charge cable companies to attach their lines to utility poles to deliver cable-based and wireless Internet service. Lower courts have ruled Commission has no authority, and Supreme Court will look at ruling by 11th U.S. Appeals Court, Atlanta, which held Commission’s regulations didn’t apply to Internet service. NCTA and FCC contend that same rates should apply to Internet as to video and it doesn’t matter what service is provided. Utilities say FCC regulations weren’t intended to protect cable companies’ ability to provide advanced services such as Internet that offer increased profits. Utilities say Internet is neither cable nor telecom service, which are only services FCC can regulate. Issue has enormous implications for NCTA and its members because siding with utilities could mean much higher rates for pole attachments and consequently, for Internet service for consumers. FCC has been reluctant to define Internet as either cable or telecom service because technology still is developing and classifying it would encumber Internet with its own set of regulations. For now, FCC sees issue in context of who is providing service, in this case cable companies. As long as service is provided by cable or telecom company, service falls under Sec. 224 of 1996 Telecom Act, FCC says. Agency currently has notice of proposed rulemaking on open access pending, so observers said they doubted it would undermine its own proceeding by trying to classify Internet service in court. Analyst Scott Cleland of Precursor Group said he expected Supreme Court to uphold FCC without deciding how to classify Internet. “I think they're going to decide it on a plain reading of the law,” he said.