The cable industry won a major battle as the U.S. Supreme Court upheld limits on how much operators may be charged for attaching wires carrying high-speed data to utility poles.

Congress gave the Federal Communications Commission the power to regulate the fees charged to attach wires carrying cable television signals, but Gulf Power Co. claimed the law didn't apply when cable companies were using the wire for Internet connections. Though the 11th U.S. Circuit Court agreed with the utility in 2000, it was overruled by the Supreme Court last week.

The National Cable & Telecommunications Association claimed that without regulation, higher costs would hamper the spread of broadband services. Compared to the regulated rate of about $5 to string cable on utility poles, in one case, a power company wanted to charge $38 for permission to attach after the appeals court decision. That increase, the association said, would cost subscribers an extra $1.50 on their monthly bills.

The NCTA was happy with the decision, which extended the industry's winning streak with the courts, Congress and the FCC.

The ruling ?overcomes a potential impediment to broadband deployment in rural areas,? said Dan Brenner, NCTA SVP-law and regulatory policy.

He said the decision also meant good news for consumers. ?It means that utility companies cannot charge arbitrarily higher prices for cable attachments to utility poles simply because cable operators provide their customers with high-speed Internet, as well as video services,? Brenner said.

The majority opinion in the cases, National Cable Television Association v. Gulf Power Co. and Federal Communications Commission v. Gulf Power Co., was written by Justice Anthony Kennedy. Five other Justices concurred in the decision. Justice Clarence Thomas dissented in part of the ruling. Justice David Souter joined his opinion. Justice Sandra Day O'Connor did not participate in the decision because she owns stock in companies that could be affected by the case's outcome.

In his majority opinion, Kennedy noted that Congress has empowered the FCC to regulate pole rates since 1978 and that the law was clear that the FCC was allowed to regulate ?any attachment by a cable television system,? whether or not it carries data services, in addition to video.

He noted that utilities are frustrated that the regulation carries over to high-speed Internet, which may or may not be what the law defines as a ?cable service.? But he adds that this ruling is more ?sensible? than the outcome the utilities sought, which would hold that ?if a cable company attempts to innovate at all and provide anything other than pure television, it loses the protection of the Pole Attachments Act and subjects itself to monopoly pricing.?

Such a decision, Kennedy added, ?would defeat Congress's general instruction to the FCC to ?encourage the deployment? of broadband Internet capability and, if necessary, ?to accelerate deployment of such capability by removing barriers to infrastructure investment.??

In his dissent, Thomas said he would vacate the lower court's ruling and send the cases back to the FCC, ordering the agency to ?clearly explain the specific statutory basis on which it is regulating rates for attachments that provide commingled cable television service and high-speed Internet access.?

To do so, Thomas said, would require the agency to ?decide at long last? whether high-speed Internet is a cable service, a telecommunications service or neither.

The FCC has yet to rule on that key distinction. If high-speed Internet delivery is judged to be a telecommunications service, it would fall under regulations now applied to most telephone companies. Those rules are stricter that the ones currently imposed on cable operators.

The FCC could also decide that high-speed Internet is an information service, similar to that offered by other Internet service providers such as Juno, Earthlink or America Online. Those services are largely unregulated.

The FCC began an inquiry on the subject a year ago and is expected to launch a rulemaking next month.

The NCTA has filed comments with the FCC asking that high-speed Internet service be considered a cable service. The group takes that approach because it would mean that data services would be dealt with under current laws and regulations by local franchise authorities. There are few clear rules on what fees and regulations local franchise authorities can apply to an information service.

Thomas Steindler, a lawyer for Gulf Power Co., said ?the court has made its ruling, and we'll abide by it,? according to Reuters. ?We're disappointed, but one of the virtues of going to [the Supreme Court] is you have clarity.?

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