\[PUBLISH\]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-6222

FCC Agency No. 97-151

GULF POWER COMPANY;

ALABAMA POWER COMPANY, et al.,

Petitioners,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-2589

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151

TAMPA ELECTRIC COMPANY,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-4675

\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 98-20-FCC

FLORIDA POWER & LIGHT COMPANY,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

No. 98-6414

FCC Agency No. 98-20

COMMONWEALTH EDISON COMPANY,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6430

\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151-CS

POTOMAC ELECTRIC POWER COMPANY,

> Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6431

\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151-CS

TEXAS UTILITIES ELECTRIC COMPANY,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6442

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151-CS

UNION ELECTRIC COMPANY, d.b.a. AMERENUE,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6458

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151-CS

AMERICAN ELECTRIC POWER SERVICES CORPORATION,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6476

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151

DUKE ENERGY CORPORATION,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6477

\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency 97-151

VIRGINIA ELECTRIC and POWER COMPANY,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6478

\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151

CAROLINA POWER & LIGHT COMPANY,

> Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6485

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151

DUQUESNE LIGHT COMPANY,

> Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 98-6486

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FCC Agency No. 97-151

DUQUESNE LIGHT COMPANY,

Petitioner,

versus

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

Petitions for Review of an Order

of the Federal Communications Commission

**(April 11, 2000)**

Before TJOFLAT and CARNES, Circuit Judges, and GARWOOD\*, Senior Circuit
Judge.

TJOFLAT, Circuit Judge:

The 1996 Pole Attachment Act, 47 U.S.C. § 224 (Supp. II. 1996) (the
"1996 Act"), gives providers of cable and telecommunications services
the right to attach

wires to the poles of power and telephone companies. If the power and
telephone

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\*Honorable Will L. Garwood, Senior U.S. Circuit Judge for the Fifth
Circuit, sitting by designation.

companies will not accept the rent the providers offer to pay, the
Federal

Communications Commission (the "FCC" or "Commission") sets the rent. In
[In re Implementation of Section 703(e) of the Telecommunications Act of
1996]{.underline}, 13 F.C.C.R. 6777 (1998) (codified at 47 C.F.R. §§
1.1401 -1.1418 (1999)) ("[Report and Order]{.underline}"), the FCC
promulgated a formula for computing that rent. The FCC also ruled (in
the [Report and Order]{.underline}) that the 1996 Act precluded
utilities (power and telephone) from receiving rent for wires that were
"overlashed" to wires previously attached to their poles;[^1] that the
1996 Act gave it authority to regulate the placement of wireless
communications equipment and attachments for Internet service on utility
poles; and that the Act precluded utilities from receiving rent for
unused wires contained within fiber optic cables, "dark fiber,"[^2]
attached to the poles.

In these consolidated petitions for review of the [Report and
Order]{.underline}, several power companies[^3] (the "Petitioners")
challenge the FCC's formula for determining rent on the ground that,
when implemented, the formula will operate to take their property
without just compensation, in violation of the Fifth Amendment. We
decline to reach this takings claim, because it is not ripe. The
Petitioners also challenge the FCC's other rulings. As to those rulings,
we find unripe their challenge to the overlashing provision of the
[Report and Order]{.underline}; we hold that the FCC lacks authority to
regulate the placement of wireless equipment on utility poles and
attachments for Internet service; and that its decision regarding dark
fiber constitutes a reasonable interpretation of the 1996 Act.

I.

A. From its inception, the cable television industry has attached its
cables to the utility poles of power and telephone companies.[^4] They
have done so because factors such as zoning restrictions, environmental
regulations, and start-up costs have rendered other options infeasible.
Despite this dearth of alternatives, the attachment agreements between
cable television companies and utility companies have generally been
voluntary. But, the lack of alternatives has given the power and
telephone companies an advantage in negotiating attachment agreements:
their monopoly in the supply of poles that could accommodate television
cables has allowed them, in the past, to charge monopoly rents.

In an effort to solve the monopoly pricing problem, Congress, in 1978,
enacted the Pole Attachment Act, Pub. L. 95-234, 92 Stat. 33 (1978)
(codified at 47 U.S.C. § 224 (1994)) (the "1978 Act"), as an amendment
to the Communications Act of 1934. The solution Congress articulated in
that act was to specify a range of rents telephone and power companies
could charge the cable television companies they allowed to attach to
their poles.[^5]47 U.S.C. § 224(d)(1) (1994). This range is more
commonly expressed as not less than the incremental cost of adding a
particular attachment, nor more than the fully allocated costs of the
pole. Congress' solution, in the 1978 Act, did not, however, change the
voluntary nature of the attachment arrangement. As before, the cable
television companies had no right to attach; thus, utilities could
reject a cable television company's offer to attach. As for the
attachments already in place, the 1978 Act effectively changed their
terms.[^6] In the event the parties could not agree to the rent and
conditions of an attachment, and the State chose not to regulate the
terms of attachments, the FCC would settle the issue.[^7]

The rule the FCC promulgated to implement its authority under the 1978
Act reflected its limited authority; that rule merely "provided
complaint and enforcement procedures to ensure that rates, terms and
conditions for cable television pole attachments \[we\]re just and
reasonable." 47 C.F.R. § 1.1401 (1978). The rule set forth (1) the
procedure for filing a complaint about rents or conditions of
attachment, [see]{.underline} [id.]{.underline}; (2) factors to be
considered by the administrative law judge in determining the lawfulness
of the rent or conditions the utility sought, [see]{.underline}
[id.]{.underline}; and (3) a formula for determining the maximum rent
the utility could receive, [see]{.underline} 47 C.F.R. § 1.1409. Under
the formula, the maximum rent a utility could charge was the attacher's
proportionate share[^8] of the bare costs of maintaining the pole and
the "carrying charges"[^9] associated with the pole.

After the FCC promulgated its rule, several cable television companies
in Florida filed complaints with the FCC, contending that Florida Power
Corporation was charging them unreasonable rents to attach.
[See]{.underline} [FCC v. Florida Power Corp.]{.underline}, 480 U.S.
245, 248-49, 107 S. Ct. 1107, 1110, 94 L. Ed. 2d 282 (1987). The FCC
agreed that the rents were unreasonable and set a lower rent. Florida
Power appealed the FCC's decision to this court, which held that the
rent the FCC had set effected a taking of Florida Power's property
without just compensation. [Florida Power Corp. v. FCC]{.underline}, 772
F.2d 1537, 1546 (11th Cir. 1985). The Supreme Court reversed, holding
that no taking occurred because Florida Power had voluntarily agreed to
the cable companies' attachments. Had Congress, in the 1978 Act,
required utilities to allow the attachments, a taking may have occurred,
the court suggested. [See]{.underline} [Florida Power Corp.]{.underline}
480 U.S. at 251 n.6, 107 S. Ct. at 1111 n.6.

The [Florida Power]{.underline} decision clarified two fundamental
precepts underlying the 1978 Act and the FCC's implementing regulations:
(1) the FCC had narrow authority under the 1978 Act; it could regulate
the power companies only to ensure that, once they consented to an
attachment, the conditions of attachment and the rent they were to
receive were reasonable; and (2) the FCC's rent formula was not subject
to judicial review under the Fifth Amendment's Takings Clause because
the 1978 Act's voluntary attachment provision effected no taking for
which just compensation would be due.

Not long after the Court decided [Florida Power]{.underline}, Congress
decided to foster competition in the cable television industry. To that
end, it enacted the Cable Communications Policy Act of 1984, Pub. L. No.
98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. §§ 521-559 (1994))
(the "Cable Act"). Prior to this enactment, cable television companies
operated under exclusive franchises granted by a local government,
usually a municipality. Because these franchises effectively gave the
companies monopolies in the franchise territory, the local governments
regulated the rates they could charge subscribers. [See]{.underline}
H.R. Rep. No. 98-934, at 23-24, [reprinted in]{.underline} 1984
U.S.C.C.A.N. 4655, 4660-61.[^10] The approach Congress adopted to
encourage competition was to eliminate the power of local governments to
set rates for "basic" cable service. Congress realized that, in the
short run at least, this would give incumbent cable operators the
ability to charge their subscribers monopoly prices. Prices would
decrease in the long run, however, as local governments granted
additional franchises for a given territory. [See]{.underline} [Johnson
Enters., Inc. v. FPL Group, Inc.]{.underline}, 162 F.3d 1290, 1296 (11th
Cir. 1998). New cable companies would be able to enter the market and
compete with the incumbent cable company though, only if they could
obtain utility pole attachments on the same terms as those given to the
incumbent.

In addition to these new demands for pole space, a host of new
telecommunications carriers (such as new long distance telephone
carriers and wide area telephone service providers), which used wires to
carry their signals, began calling on the power and telephone companies
to lease them space. They did so because utility poles afforded the only
feasible means for stringing their wires. Since the 1978 Act only
regulated the rents utilities could charge cable television companies,
many utilities demanded monopoly rents from telecommunications carriers.
In an effort to alleviate this problem, Congress, in 1996, amended the
1978 Act to give entities providing telecommunications and cable
television service the right to "nondiscriminatory access" to utility
poles. [See]{.underline} 47 U.S.C. § 224(f) (Supp. II 1996).[^11] In the
event the parties could not agree to the terms of the attachment,
including the rent, the 1996 Act authorized the FCC to set "just and
reasonable" terms. [See]{.underline} [id.]{.underline} § 224(b)(1).

The 1996 Act also (1) redefined "utility," changing the definition from
"any person whose rates or charges are regulated by the Federal
Government or a State" to "any person who is a local exchange carrier,
or a electric, gas, water, steam, or other public utility;"[^12] (2)
redefined "pole attachment" to include attachments by providers of
telecommunications service;[^13] (3) directed the FCC to create a
formula for determining the attachment rent a utility could charge a
telecommunications service provider;[^14] and (4) instructed utilities
on how to apportion the costs of "unusable" and "usable" space on their
poles among telecommunications service providers.[^15]

On February 6, 1998, the FCC promulgated regulations implementing its
authority under the 1996 Act. [See]{.underline} [Report and
Order]{.underline}, 13 F.C.C.R. 6777. In the [Report and
Order]{.underline}, the FCC interpreted section 224(f) of the 1996 Act
to require that utility companies give Internet providers access to
their poles because the Internet was a cable service. [See]{.underline}
[id.]{.underline} at 6795-96. Further, it interpreted the language of
section 224(a)(4), which states that pole attachment meant
[any]{.underline} attachment, and section 224(d)(3), which provides that
the FCC's rate applied to [any]{.underline} attachment by a
telecommunications carrier, to mean that telephone and power companies
would have to accept pole attachments for wireless telephone equipment.
[See]{.underline} [id.]{.underline} at 6798-99; [see also]{.underline}
[infra]{.underline} n.22. The agency also determined that the Act
precludes utilities from receiving rent for overlashed wires unless
those wires significantly increase the burden on the pole.
[See]{.underline} [id.]{.underline} at 6807. Finally, the FCC
interpreted the Act to prohibit utilities from receiving rent for dark
fiber. [See]{.underline} [id.]{.underline} at 6810.

Having thus interpreted the scope of its authority, the FCC articulated
formulas for determining the attachment rents utilities may charge
telecommunications service providers. [See]{.underline}
[id.]{.underline} at 6820-30. Until February 2001, the 1978 Act's
maximum rent formula for cable providers applies to attachments by
telecommunications service providers. After that, the maximum rent will
equal the sum of the "unusable" and "usable" rate factors.[^16]

In this amended rule, the FCC incorporated almost verbatim the complaint
process articulated in its 1978 rule. [See]{.underline} 47 C.F.R. §§
1.1404, 1.1409 (1999). If the parties cannot agree to the rent or other
terms of an attachment (or if the utility denies access to its poles),
the party contending that the rent or other terms are unjust and
unreasonable may petition the Commission to settle the matter. That
party bears the burden of establishing a [prima facie]{.underline} case
that the other party's position is unjust and unreasonable.[^17] If the
complainant fails to make out a [prima facie]{.underline} case, the FCC
must dismiss its complaint, in which case the rent or conditions offered
or demanded govern the transaction.[^18] If a [prima facie]{.underline}
case is established, the Commission determines the [maximum]{.underline}
just and reasonable rent allowed under the rule's formula. Then, it
decides the specific just and reasonable rent the complainant should pay
or receive for the attachment. This determination involves reviewing
items such as costs, rate of return on investment, the utility's filings
before state or federal regulatory agencies, and engineering studies,
[see]{.underline} 47 C.F.R. § 1.1404(g)(1)-(13) (1999), in addition to
considering the maximum rent the FCC's formula yields. The FCC's final
rate order, like any of its final orders, is then subject to judicial
review under 47 U.S.C. § 402(a) (1994) (providing for judicial review of
FCC orders) and 28 U.S.C. §§ 2342, 2344 (1994) (providing for judicial
review of FCC orders in a United States Court of Appeals).

B. In response to the FCC's [Report and Order]{.underline}, power
companies across the country filed petitions for review in various
courts of appeals. On March 23, 1998, Gulf Power Company, Alabama Power
Company, Georgia Power Company, and Southern Company Services filed a
joint petition for review in the Eleventh Circuit Court of Appeals. On
April 28, 1998, Florida Power & Light Company also filed a petition for
review in the Eleventh Circuit. Subsequently, on May 8, 1998, Tampa
Electric Company filed a petition for review in the Eleventh Circuit,
and Potomac Electric Company filed a petition for review in the D.C.
Circuit. The same day, Virginia Electric & Power Company, Duke Energy
Company, and Carolina Power & Light Company filed petitions for review
in the Fourth Circuit; Duquesne Light Company and Delmarva Power & Light
Company filed in the Third Circuit; American Electric Power Service
Corporation filed in the Sixth Circuit; Commonwealth Edison Company
filed in the Seventh Circuit; and Union Electric Company filed in the
Eighth Circuit. Finally, on June 17 and July 16, 1998, respectively,
Houston Lighting & Power Company and Public Service Electric & Gas
Company filed motions to intervene in the first case filed in the
Eleventh Circuit. Their motions were granted on August 4, 1998, the same
day we granted the FCC's motion to consolidate all of the petitions for
review.

In their petitions for review, the Petitioners challenge (1) the
implementation of the FCC's formula for computing attachment rents as a
taking without just compensation; (2) the implementation of the FCC's
overlashing interpretation as a taking without just compensation; (3)
the FCC's authority to include wireless communications equipment within
the 1996 Act's regulated rate framework; (4) the FCC's authority to
include Internet service providers within the 1996 Act's regulated rate
framework; and (5) the FCC's decision not to count dark fibers as
separate attachments. We discuss each of these challenges below, in
parts III-VI.

On the day Gulf Power Company and its co-plaintiffs filed their joint
petition for review, Gulf Power and several other utilities[^19] brought
an action in the United States District Court for the Northern District
of Florida seeking declaratory and injunctive relief. [See]{.underline}
[Gulf Power Co. v. United States]{.underline}, 998 F. Supp. 1386 (N.D.
Fla. 1998). Contending that the range of rental compensation the 1996
Act provided would in every case operate to deny a utility just
compensation, these plaintiffs sought a declaration that the 1996 Act
was facially invalid under the Fifth Amendment Takings Clause, and a
permanent injunction prohibiting the Commission from enforcing the 1996
Act. [See]{.underline} [id.]{.underline} at 1389. The plaintiffs also
claimed that allowing the FCC to determine just compensation violated
the Separation of Powers doctrine. The district court granted the United
States' motion for summary judgment. It concluded that, although the
1996 Act authorized a taking of the plaintiffs' property, it did not
deny the plaintiffs just compensation. Rather, it provided a procedure
-- a proceeding before the Commission -- for determining just
compensation which did not violate the Separation of Powers doctrine
because the Commission's decision was subject to judicial review.
[See]{.underline} [id.]{.underline} at 1397-98.

The plaintiff utilities appealed. A panel of this court upheld the
district court's conclusion that the 1996 Act authorized a taking of the
plaintiffs' property, but declined to review the court's ruling on just
compensation. That issue was not ripe for review because the plaintiffs
had not shown that the 1996 Act would operate to deny them just
compensation in every case. [See]{.underline} [Gulf Power Co. v. United
States]{.underline}, 187 F.3d 1324, 1338 (11th Cir. 1999) ([Gulf Power
I]{.underline}). Finally, the panel affirmed the district court's
holding that allowing the FCC to determine just compensation in the
first instance did not violate the Separation of Powers doctrine.
[Id.]{.underline} at 1332-37.

II\.

In their petitions for review, the Petitioners do not present the same
challenges the plaintiffs made in [Gulf Power I]{.underline}. Instead of
attacking the facial validity of the Act under the Fifth Amendment
Takings Clause and the Separation of Powers doctrine, the Petitioners
question the facial validity of several aspects of the FCC's [Report and
Order]{.underline}.

We review constitutional challenges to agency regulations
[de]{.underline} [novo]{.underline}. [See]{.underline} [Rural Tel.
Coalition v. FCC]{.underline}, 838 F.2d 1307, 1313 (D.C. Cir. 1988);
[see]{.underline} [also]{.underline} 5 U.S.C. § 706(2)(B) (1994). We use
the two-step [Chevron]{.underline} analysis to review agency
interpretations of a statute. [See]{.underline} [Chevron U.S.A., Inc. v.
Natural Resources Defense Council]{.underline}, 467 U.S. 837, 104 S. Ct.
2778, 81 L. Ed. 2d 694 (1984); [Legal Envtl. Assistance Found. Inc. v.
EPA]{.underline}, 118 F.3d 1467, 1473 (11th Cir. 1997). Under
[Chevron]{.underline} step one, we determine whether Congress has spoken
unambiguously to the question at issue. If it has, our inquiry ends; we
give effect to Congress' intent. [See]{.underline}
[Chevron]{.underline}, 467 U.S. at 842-43, 104 S. Ct. at 2781. Under
[Chevron]{.underline} step two, if we determine that Congress' intent is
ambiguous, we defer to a reasonable agency interpretation of Congress'
intent. [See]{.underline} [id.]{.underline} at 843, 104 S. Ct. at
2781-82. In resolving whether an ambiguity exists, we use normal tools
of statutory construction, without affording agency interpretations any
deference. [See]{.underline} [INS v. Cardoza-Fonseca]{.underline}, 480
U.S. 421, 446, 107 S. Ct. 1207, 1221, 94 L. Ed. 2d 434 (1987); [National
Mining Ass'n v. Secretary of Labor]{.underline}, 153 F. 3d 1264, 1267
(11th Cir. 1998).

III\.

The Petitioners' primary challenge to the FCC's [Report and
Order]{.underline} is that the rate formula it establishes cannot pass
muster under the Fifth Amendment Takings Clause. The Petitioners'
challenge presents two separate questions: will the Commission's
formula, when implemented, effect a taking of part of utility poles, and
if so, will the formula operate to deny the utilities just compensation
in every case.

The [Gulf Power I]{.underline} panel decided that the 1996 Act
authorized a taking of utilities property, but concluded that the issue
of whether the statute would operate to deny just compensation in every
case was not ripe for review. [See]{.underline} [Gulf Power
I]{.underline}, 187 F.3d at 1338; [see also]{.underline} [Abbott Lab. v.
Gardner]{.underline}, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18 L.
Ed. 2d 681 (1967). The panel's resolution of the takings issue
constitutes binding precedent. [See]{.underline} [Cargill v.
Turpin]{.underline}, 120 F.3d 1366, 1386 (11th Cir. 1997). We therefore
begin with the premise that the 1996 Act authorizes the Commission, when
faced with a complaint filed by an entity providing cable television or
telecommunications services, to take a utility's property. Thus, our
answer to the first question the Petitioners pose is yes: when the
Commission rules on a complaint, a taking may result.

The second question the Petitioners present is whether the Commission's
formula will operate to deny utilities just compensation in every case.
The [Gulf Power I]{.underline} panel held that the just compensation
question, when raised in a facial challenge to the 1996 Act, was not
ripe unless the plaintiffs could show that just compensation would be
denied in all cases. The compensation limits -- the maximum and minimum
rents -- that the Commission's rule prescribes mirror the compensation
limits prescribed by the 1996 Act. [Compare]{.underline} 47 U.S.C. §
224(b), (d)(1), [with]{.underline} 47 C.F.R. § 1.1409. Under the 1996
Act, the lowest rent that may be considered just and reasonable is an
amount equal to the incremental cost of adding the new attachment to the
utility's pole; the highest rent that may be considered just and
reasonable is an amount equal to the fully allocated costs of the pole.
[See]{.underline} 47 U.S.C. § 224(b), (d)(1). A rent that is higher or
lower than these statutory limits would be unjust and unreasonable.
Because the outer boundaries of the FCC's formula are identical to those
of the 1996 Act, [Gulf Power I]{.underline}'s ripeness standard binds
us. Thus, we inquire whether the Petitioners have shown that the
Commission's formula will always deny utilities just compensation.

In this case, we are not called upon to review an FCC determination that
a utility provide pole space at a rent that does not amount to the just
compensation mandated by the Takings Clause. All that is before us is a
facial attack on the Commission's formula and the Petitioners'
allegation that factors the Commission took into account in fashioning
the formula could never provide just compensation. This is essentially
the same argument the utilities made to the [Gulf Power I]{.underline}
panel. The panel's response was that the utilities failed to establish
that " 'no set of circumstances exists under which the Act would be
valid.' " [Gulf Power I]{.underline}, 187 F.3d at 1336 (quoting [United
States v. Salerno]{.underline}, 481 U.S. 739, 745, 107 S. Ct. 2095,
2100, 95 L. Ed. 2d 697 (1987)). Although the Petitioners posit
circumstances in which the FCC's formula will deny just compensation, we
are not confident, given the record at hand, that the formula will deny
just compensation in all cases. The Petitioners' facial challenge to the
formula is therefore unripe, and we do not address it. [Gulf Power
I]{.underline}, 187 F.3d at 1338; [Cargill]{.underline}, 120 F.3d at
1386.[^20]

IV\.

The Petitioners challenge the FCC's decision to include wireless
carriers within the "nondiscriminatory access" provision of section
224(f), claiming that the FCC has no statutory authority to regulate
wireless carriers under the 1996 Act.[^21] We agree.

The FCC contends that Congress' frequent use of the word "any" in the
1996 Act indicates an intent to have the Commission broadly regulate
pole attachments.[^22] As long as an attachment is made by a cable
television company or a telecommunications service provider, the FCC
contends, the attachment may be regulated under section 224(d) or (e),
no matter what kind of attachment it is. This position is contrary to
the Commission's narrow authority to regulate power companies. The FCC's
organic statute does not give it authority to regulate power utilities.
[See]{.underline} 47 U.S.C. § 151 (1994) (creating the FCC to regulate
interstate and foreign commerce in radio and wire communication).
Congress placed power companies within the agency's regulatory authority
for pole attachment purposes only. [See]{.underline} 47 U.S.C. §
224(a)(1).

Section 224(a)(4) defines a pole attachment as "any attachment by a
cable television system or provider of telecommunications service to a
pole, duct, conduit, or right-of-way owned or controlled by a utility."
A utility, according to section 224(a)(1) is "any person . . . who owns
or controls poles, ducts, conduits, or rights-of-way used, in whole or
in part, for any wire communications."[^23] Read in combination, these
two provisions give the FCC authority to regulate attachments to poles
used, at least in part, for [wire]{.underline} communications, and by
negative implication does not give the FCC authority over attachments to
poles for [wireless]{.underline} communications.[^24]

That wires are integral to the FCC's authority is supported by the
legislative history of the 1978 Act.[^25] Congress' reason for passing
it was that the Commission did not believe it had authority to regulate
power companies since pole attachment arrangements "d\[id\] not
constitute communication by wire or radio." S. Rep. No.95-580, at 14,
[reprinted in]{.underline} 1978 U.S.C.C.A.N. at 122 (internal quotation
marks omitted). The FCC reasoned that:

> The fact that cable operators ha\[d\] found in-place facilities
> convenient or even necessary for their businesses \[wa\]s not
> sufficient basis for finding that the leasing of those facilities
> \[wa\]s wire or radio communications. If such were the case, we might
> be called upon to regulate access and charges for use of public and
> private roads and right of ways essential for the laying of wire, or
> even access and rents for antenna sites.

[Id.]{.underline} Before 1978, the FCC's regulatory authority did not
extend to power companies because power companies did not use their
poles primarily for communication by wire or radio. This hindered the
growth of the cable television market. The FCC could regulate what
telephone companies charged to attach, but could not regulate what the
power companies charged to attach. Because telephone and power poles
generally did not run side-by-side, the cable companies at times were
forced to attach to power company poles instead of telephone poles, and
to pay monopoly rents. To prevent the power companies from taking unfair
advantage of their bottleneck facilities in this manner, Congress
brought them under the FCC's regulatory umbrella, permitting
"\[f\]ederal involvement in pole attachments matters . . . where space
on a utility pole ha\[d\] been designated and \[wa\]s [actually being
used for communications services by wire or cable]{.underline}."
[Id.]{.underline} at 15, [reprinted in]{.underline} 1978 U.S.C.C.A.N. at
123 (emphasis added). The reason Congress gave this pole attachment
authority to the FCC was that the Commission already regulated all other
aspects of the cable industry and cable companies were the only entities
seeking to attach to poles in 1978.

In 1996, when Congress amended the 1978 Act, it once again expanded the
FCC's jurisdiction; this time to include attachments by
telecommunications service providers. Nothing in the legislative history
indicates that the original purpose behind regulating utility poles --
to prevent the telephone and power companies from charging monopoly
rents to connect to their bottleneck[^26] facilities -- changed. Rather,
the legislative history suggests the same thing the language alteration
suggests: Congress wanted to allow telecommunications service providers,
like the cable television companies before them, to attach to the
utilities' bottleneck facilities without having to pay monopoly rents.
[See]{.underline} H. Rep. No. 104-204, at 92 (1996), [reprinted
in]{.underline} 1996 U.S.C.C.A.N. 10, 58.

The Petitioners' poles are not bottleneck facilities for wireless
carriers. Wireless attachments to poles "include an antenna or antenna
clusters, a communications cabinet at the base of the pole, coaxial
cables connecting antennas to the cabinet, concrete pads to support the
cabinet, ground wires and trenching, and wires for telephone and
electric service." [Report and Order]{.underline}, 13 F.C.C.R.. at 6799.
Most of this equipment can be placed on any tall building, and the whole
set-up requires more physical space then a wireline system. Further,
wireless systems operate in a completely different way than do wireline
systems. Wireline networks transmit through linear networks of cables
strung between poles. Wireless networks, on the other hand, transmit
through a series of concentric circle emissions that allow the network
to continue working if one antenna malfunctions. Indeed, it is highly
questionable whether there are any bottleneck facilities for wireless
systems. What is beyond question is that utility poles are not
bottleneck facilities for wireless systems. Because they are not, and
because the 1996 Act deals with wire and cable attachments to bottleneck
facilities, the act does not provide the FCC with authority to regulate
wireless carriers.[^27]

Although Congress did not give the FCC authority to regulate the
placement of wireless carriers' equipment under section 224 (or any
other section) of the Telecommunications Act of 1996, that statute did
address, in part, such regulation by state and local governments.
Section 332[^28] states that "\[t\]he regulation of the placement,
construction, and modification of personal wireless services facilities
by any State or local government or instrumentality thereof -- shall not
unreasonably discriminate among providers of functionally equivalent
services; and shall not prohibit or have the effect of prohibiting the
provision of personal wireless service." Pub. L. No. 104-104, §
704(B)(i)(I),(II), 110 Stat. 149 (1996) (codified at 47 U.S.C. §
332(7)(B)(i)(I), (II)). The section goes on to require a state to act on
requests to site wireless equipment within a reasonable time, to require
a state to put its reasons for denying any such request in writing, and
to limit the reasons a state can assert for determining where wireless
carriers can locate their equipment. [See]{.underline} [id.]{.underline}
§ 704(B)(ii)-(iv) (codified at 47 U.S.C. § 332(7)(B)(ii)-(iv)). The
specificity with which Congress addressed the siting of wireless
equipment in section 332 indicates that it did not intend that section
224 provide the FCC authority to regulate the placement of wireless
carriers' equipment.

V.

Next, Petitioners challenge the FCC's statutory authority to regulate
attachments for Internet service under the 1996 Act. As with wireless
carriers, we agree that the FCC has no authority under that act to
regulate Internet service providers. The 1996 Act allows the Commission
to regulate the rates for cable service and telecommunications service;
Internet service is neither.

The FCC argues that Internet service provided by a cable television
system is either "solely cable services" or is subject to regulation
under section 224(b)(1)'s mandate to "ensure that the rates, terms, and
conditions \[for pole attachments\] are just and reasonable." [Report
and Order]{.underline}, 13 F.C.C.R. at 6795-96 (internal quotation marks
omitted). To accept this argument requires us to disregard the
unambiguous language of the 1996 Act, which we cannot do.
[See]{.underline} [Robinson v. Shell Oil Co.]{.underline}, 519 U.S. 337,
340-41, 117 S. Ct. 843, 846, 136 L. Ed. 2d 808 (1997). The 1996 Act
calls for the Commission to establish two rates for pole
attachments.[^29] One, described in section 224(d), applies to "any pole
attachment used by a cable television system solely to provide cable
service." 47 U.S.C. § 224(d)(3). The second rate applies to "charges for
pole attachments used by telecommunications carriers to provide
telecommunications services." 47 U.S.C. § 224(e)(1). For the FCC to be
able to regulate the rent for an attachment that provides Internet
service then, Internet service must qualify as either a cable service or
a telecommunications service.

Cable service, defined in section 522, is "the one-way transmission to
subscribers of (i) video programming, or (ii) other programming service,
and subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service." 47
U.S.C. § 522(6)(A), (B) (1994 & Supp. II 1996).[^30] The only difference
between this definition of "cable service" and the definition included
in the 1978 Act is the addition of the words "or use." According to the
House Report accompanying the 1996 amendments, the inclusion of the
words "or use" was meant to "reflect\[\] the evolution of video
programming toward interactive services." H. Rep. No. 104-204, at 97,
[reprinted in]{.underline} 1996 U.S.C.C.A.N. at 64. This is the only
sentence in the legislative history that attempts to explain Congress'
change to the definition of "cable service." Although what it means to
reflect an evolution of video programming toward interactive service is
not exactly clear, it is clear from Congress' lack of discussion of this
change that it was minor in both language and intent. If Congress by the
addition of these two words meant to expand the scope of the "cable
service" definition from its traditional video base to include all
interactive services, video and non-video, it would have said so.
Without any substantive comment, we will not read this minor change to
effectuate a major statutory shift. [See]{.underline} [Walters v.
National Ass'n of Radiation Survivors]{.underline}, 473 U.S. 305, 318,
105 S. Ct. 3180, 3187, 87 L. Ed. 2d 220 (1985) (stating that without
substantive comment "it is generally held that a change during
codification is not intended to alter the statute's scope") (citing
[Muniz v. Hoffman]{.underline}, 422 U.S. 454, 467‑74, 95 S. Ct. 2178,
2185‑89, 45 L. Ed. 2d 319 (1975)). How then did the addition of the
words "or use" alter the definition of "cable service"? The statute's
plain language and Congress' one sentence explanation suggest that
Congress expanded the definition to include services that cable
television companies offer to their customers to allow them to interact
with traditional video programming.[^31]

Although the statute includes interaction with other programming -- in
addition to video programming -- within the definition of "cable
service," we cannot read the language "other programming" broadly to
include Internet services. "Other programming" has been part of the
definition of "cable service" since 1978, when the Internet was only a
tool for researchers and the military, not a commodity that would
require regulation. When Congress used this language then, it could not
have intended it to cover Internet services provided by cable companies.
Again, we will not radically expand the scope of the definition of
"cable service" from a video base to an all-interactive-services base
without some substantive indication from Congress that this is indeed
its intent. [See]{.underline} [Walters]{.underline}, 473 U.S. at 318,
105 S. Ct. at 3187.[^32]

Furthermore, as an aside, we note that the FCC, itself, has defined the
Internet as an information service, not as a cable service.
[See]{.underline} [In re Fed.-State Joint Bd. on Universal
Serv.]{.underline}, 13 F.C.C.R. 11501 ¶ 66 ("Internet service providers
themselves provide information services . . . . "). Thus, the FCC lacks
statutory authority to regulate the Internet under the 1996 Act based on
the theory that Internet service is a cable service.

The only remaining basis for the Commission's authority to regulate the
Internet under the 1996 Act is to treat the Internet as a
telecommunications service. [See]{.underline} 47 U.S.C. § 224(d)(3), (e)
(directing the Commission to develop a rate for telecommunications
carriers providing telecommunications service). The FCC, however, did
not raise that argument before us. Nor could it have because the FCC has
specifically said that the Internet is not a telecommunications service.
[See]{.underline} [Report and Order]{.underline}, 13 F.C.C.R. at 6795
("The [Universal Service Order]{.underline} concluded that Internet
service is not the provision of a telecommunications service under the
1996 Act."); [In re Fed.-State Joint Bd. on Universal
Serv.]{.underline}, 12 F.C.C.R. 87 ¶ 69 (1996) ("Internet service does
not meet the statutory definition of a 'telecommunications service.'
").[^33] Accordingly, there is no statutory basis for the FCC to
regulate the Internet as a telecommunications service under the 1996
Act.

In sum, Congress, in the 1996 Act, authorized the FCC to develop rent
formulas for attachments providing cable and telecommunications
services. Internet service does not meet the definition of either a
cable service or a telecommunications service. Therefore, the 1996 Act
does not authorize the FCC to regulate pole attachments for Internet
service.

VI\.

The Petitioners' final challenge is to the FCC's statutory authority to
regulate the rents utilities charge for dark fiber attachments. Dark
fiber, which exists within a fiber optic cable, "consists of . . . bare
capacity and does not involve any of the electronics necessary to
transmit or receive signals over that capacity." [Report and
Order]{.underline}, 13 F.C.C.R. at 6810. The advantage of stringing
cables with lit and dark fiber is that dark fiber provides excess
distribution and transmittal capacity for a cable or telecommunications
company to use as its service network expands. Dark fiber also may be
leased to a third party. Because dark fiber is bare capacity, it
technically is neither a telecommunications service nor a cable service.
In fact, it is not a service at all; it is simply an inactive fiber.

The 1996 Act authorizes the FCC to regulate the pole attachments of
cable television and telecommunications companies that provide cable and
telecommunications services. [See]{.underline} 47 U.S.C. § 224;
[supra]{.underline} part V. The 1996 Act says nothing about regulating
bare capacity. But, these bare capacity fibers do not generally exist on
their own. They are usually located within cables that also contain
fibers providing cable or telecommunications services, i.e., lit fibers
the FCC clearly has the authority to regulate. Thus, unlike Internet
service or wireless carriers, the statute's silence does not resolve the
issue of whether the Commission may regulate dark fiber. Both Internet
service and wireless carriers are similar to items the statute covers.
The statute defines the kinds of attachers it covers, and wireless
carriers do not fall within that definition. Similarly, the statute
defines the types of wire services it covers, and Internet services are
not one of those services. We can, therefore, say, based on the 1996 Act
alone, that the FCC lacks the authority to regulate wireless carriers
and the provision of Internet services. Dark fiber, however, is not a
service (nor, of course, is it a type of attacher). Thus, the fact that
it falls outside the definitions of "cable service" and
"telecommunications service" tells us nothing about Congress' intent to
regulate dark fiber. Congress did say that it did not intend to have an
attacher pay twice for a single attachment, [see]{.underline} H.R. Rep.
No. 104-204, at 92, [reprinted in]{.underline} 1996 U.S.C.C.A.N. at 59,
but the legislative history does not indicate whether dark fiber and its
host were to be considered a single attachment. Congress' intent is
ambiguous; therefore, we proceed to step two of the
[Chevron]{.underline} analytical framework and consider whether the FCC
reasonably interpreted Congress' silence on dark fiber.
[See]{.underline} [Chevron]{.underline}, 467 U.S. at 843, 104 S. Ct. at
2781-82.[^34]

The FCC decided that dark fiber is not a separate attaching entity from
its host attachment. [See]{.underline} [Report and Order]{.underline},
13 F.C.C.R. at 6811.[^35] According to the FCC, dark fibers place no
more burden on a pole than do their host attachments. [See]{.underline}
[id.]{.underline} This makes sense since dark fiber, by definition, is
merely bare capacity and is included within its host attachment at the
time that cable is attached to the pole. Further, we presume that in
determining the rent for the host attachment, the utility and the FCC
will account for the dark fibers contained within the attaching host. By
accounting for the dark fibers in the rent determination for the host
cable, the Commission ensures that the utility receives just
compensation for any burden the dark fiber may cause the pole at the
time the host attaches. Hence, once the utility has been compensated,
there is no reason to treat dark fiber as a separate attaching entity,
and the FCC's decision not to do so is reasonable.[^36]

VII\.

For the foregoing reasons, we hold that the nondiscriminatory access
provision of the 1996 Act authorizes a taking of a portion of the
Petitioners' poles, which occurs when the FCC issues a rent
determination order as to a particular pole or set of poles. Whether the
rent formula developed by the FCC, including its decision not to require
additional compensation for overlashed wires, provides just compensation
is not ripe for review because it is not presented in a sufficiently
concrete form for adjudication. Further, we hold that the FCC lacks the
authority to regulate wireless carriers and the provision of Internet
service under the 1996 Act. Finally, we hold that the FCC's decision not
to count leased dark fiber as an additional attaching entity is
reasonable.

SO ORDERED.

CARNES, Circuit Judge, concurring in part and dissenting in part:

On review in these cases is [In the Matter of Implementation of Section
703(e) of the Telecommunications Act of 1996]{.underline}, 13 F.C.C.R.
6777 (1998) ("[Order]{.underline}"), the order of the Federal
Communications Commission which implements the amendments to the Pole
Attachment Act of 1978, 47 U.S.C. § 224, contained in the
Telecommunications Act of 1996. Because I believe that the Pole
Attachment Act of 1978, as amended, extends regulated rates to all pole
attachments, including those used for wireless telecommunications
service and Internet service, I dissent from the parts of the Court's
decision reaching a contrary conclusion.

I do agree with the majority opinion's conclusions regarding the
petitioners' facial attack on the rate formula prescribed in the
[Order]{.underline}. As this Court held in [Gulf Power Co. et al. v.
United States]{.underline}, 187 F.3d 1324 (11th Cir. 1999) ("[Gulf Power
I]{.underline}"), section 224(f), the statutory provision requiring
utilities to accept pole attachments, effects a per se taking of
property under the Fifth Amendment for which just compensation is
required.[^37] [Id.]{.underline} at 1328-31. But the petitioners have
failed to show that the [Order]{.underline}'s rate formula will deny
just compensation in every case. Consequently, their facial challenge to
the formula is unripe and, as the majority opinion concludes, it should
not be considered by this Court.[^38] [Id.]{.underline}

I disagree, however, with the majority opinion's holdings regarding
wireless telecommunications service and Internet service. It concludes
that the FCC has no authority to regulate either wireless
telecommunications carriers or Internet service providers, but the plain
language of the statute mandates the opposite conclusion.[^39]

Section 224(b)(1) provides that the FCC "shall regulate the rates,
terms, and conditions for pole attachments to provide that such rates,
terms, and conditions are just and reasonable." The term "pole
attachment" is defined in section 224(a)(4) as "[any]{.underline}
attachment by a cable television system or provider of
telecommunications service to a pole, duct, conduit, or right-of-way
owned or controlled by a utility." (emphasis added). As this Court has
stated, more than once, "the adjective 'any' is not ambiguous; it has a
well-established meaning." [Merritt v. Dillard Paper Co.]{.underline},
120 F.3d 1181, 1186 (11th Cir. 1997); [accord]{.underline} [Lyes v. City
of Rivera Beach, Florida]{.underline}, 166 F.3d 1332, 1337 (11th Cir.
1999) (en banc). "Read naturally, the word 'any' has an expansive
meaning, that is, 'one or some indiscriminately of whatever kind.'"
[United States v. Gonzales]{.underline}, 520 U.S. 1, 5, 117 S. Ct. 1032,
1035, 137 L. Ed. 2d 132 (1997) (citations omitted) (as quoted in
[Merritt]{.underline}, 120 F.3d at 1186). Applying that definition to
sections 224(a)(4) and (b)(1), the FCC has the authority to regulate
[all]{.underline} attachments, i.e., attachments "of whatever kind,"
[id.]{.underline}, by a cable television system or provider of
telecommunications service to a pole, duct, conduct, or right-of-way
owned or controlled by a utility. Obviously, [all]{.underline}
attachments includes those attachments used to provide wireless and
Internet services.

The majority opinion does not attempt to justify its conclusions
regarding wireless service with the language of the statute, except to
say that there is a "negative implication" created by the statutory
definition of a pole attachment coupled with the definition of a
utility.[^40] But the negative implication, if there is one at all, is
not nearly as strong as the majority seems to think. The statutory
definition of utility serves merely to exempt from mandatory access any
utility that does not make its poles available for wire communications
at all. If a utility does not make its poles available for wire
communications, it does not have to make its poles available for
wireless communications. However, once a utility makes its poles
available, even "in part," for wire communications, it is subject to
mandatory access for all pole attachments. Nothing about the definition
of utility negates the FCC's mandate to regulate rates for all pole
attachments.

Notwithstanding the straightforward statutory language, the majority
opinion turns to legislative history to justify its conclusion about
wireless communications. But the Supreme Court, as well as this Court,
has repeatedly held when the meaning of a statute is clear from its
plain language, it is unnecessary to look to legislative history.
[See]{.underline} [Gonzales]{.underline}, 117 S.Ct. at 1035 ("Given the
straightforward statutory command, there is no reason to resort to
legislative history."); [Ratzlaf v. United States]{.underline}, 510 U.S.
135, 147-48, 114 S.Ct. 655, 662 (1994) ("we do not resort to legislative
history to cloud a statutory text that is clear."); [United States v.
Paradies,]{.underline} 98 F.3d 1266, 1288 (11th Cir. 1996) ("Because the
language in the statute is clear, it would be improper to look to the
legislative history for clarification."). Because the statutory language
at issue is unambiguous, resort to legislative history in order to
undermine it is unnecessary and improper.

With respect to Internet service, the majority opinion concludes that
the FCC has no authority to regulate it because Internet service is
neither a cable service nor a telecommunications service, and is thus
not covered by the rate formulas described in section 224(d) for
"solely" cable services and in section 224(e) for telecommunications
services. But the majority opinion fails to address the section
224(b)(1) mandate that the FCC "regulate the rates, terms, and
conditions for pole attachments to provide that such rates, terms, and
conditions are just and reasonable \...." Because pole attachment is
defined as "any attachment," and because of the unambiguous definition
of "any," section 224(b)(1) requires the FCC to ensure just and
reasonable rates for all pole attachments, including those used to
provide Internet service.

Finally, I agree with the majority opinion's conclusion that the FCC has
the authority to regulate dark fiber and that the FCC's decision not to
treat dark fiber as a separate attaching entity is reasonable. For
reasons I have already discussed, dark fiber is within the definition of
pole attachment, and it is therefore within the FCC's regulatory
authority. The FCC's decision to treat dark fiber and its host
attachment as one attaching entity is reasonable, because, as the
majority opinion notes, "dark fiber, by definition, is merely bare
capacity and is included within its host attachment at the time that
cable is attached to the pole."

The problem is how the majority opinion reaches the conclusion that the
FCC is authorized to regulate dark fiber. It does so by concluding that
because dark fiber is neither a cable service nor a telecommunications
service, the statute is ambiguous. But the same majority opinion also
concludes that because Internet service is neither a cable service nor a
telecommunications service, the statute is unambiguous and Internet
service is outside the FCC's regulatory authority. The majority cannot
have it both ways -- either the statute unambiguously gives the FCC the
authority to regulate only cable and telecommunications services, or the
statute is ambiguous about whether the FCC has authority to regulate
more than cable and telecommunications services. My view is consistent:
The statute unambiguously gives the FCC authority to regulate any and
all pole attachments. The majority opinion's view is not consistent.

Because I believe that the statute unambiguously gives the FCC
regulatory authority over wireless telecommunications service and
Internet service, I dissent from those parts of the majority opinion
holding to the contrary.

[^1]: Overlashing occurs when an attacher physically ties additional
    cables to cables already attached to a pole. [See]{.underline}
    [Report and Order]{.underline}, 13 F.C.C.R. 6777, 6805 (1998).

[^2]: Dark fiber is "bare capacity and does not involve any of the
    electronics necessary to transmit or receive signals over that
    capacity." [Report and Order]{.underline}, 13 F.C.C.R. at 6810.

[^3]: The utilities involved in this proceeding either as petitioners or
    intervenors are Gulf Power Company, Alabama Power Company, Georgia
    Power Company, Southern Company Services, Tampa Electric Company,
    Potomac Electric Power Company, Virginia Electric & Power Company,
    Carolina Power & Light Company, Duquesne Light Company, Delmarva
    Power & Light Company, Public Service Electric & Gas Company,
    Houston Lighting & Power Company, Texas Utilities Electric Company,
    American Electric Power Service Corporation, Commonwealth Edison
    Company, Duke Energy Corporation, Union Electric Company, and
    Florida Power and Light Company.

[^4]: In 1978, when Congress decided to intervene as described in the
    text [infra]{.underline}, approximately 95 percent of cable
    television wires were attached to utility poles because cable
    television companies owned less than 10,000 poles, compared to over
    ten million poles owned by the power and telephone companies.
    [See]{.underline} S. Rep. No. 95-580, at 12-13 (1978), [reprinted
    in]{.underline} 1978 U.S.C.C.A.N. 109, 120-21.

[^5]: Congress expressed this range as:

    \[N\]ot less than the additional costs of providing pole
    attachments, nor more

    than an amount determined by multiplying the percentage of the total
    usable

    space, or the percentage of the total duct or conduit capacity,
    which is occupied

    by the pole attachment by the sum of the operating expenses and
    actual capital

    costs of the utility attributable to the entire pole, duct, conduit,
    or right-of-way.

[^6]: Since the 1978 Act did not give the cable television companies the
    right to attach, the utilities could have avoided the FCC's
    regulation of rent and conditions of attachment under the Act by
    canceling the existing arrangements, and having the attachments
    removed. For obvious reasons, the utilities did not take this step.

[^7]: The FCC already possessed regulatory authority over the telephone
    industry. [See]{.underline} 47 U.S.C. § 151 (1994). The passage of
    the 1978 Act gave the FCC the authority to regulate power companies
    as well, albeit in the limited manner described in the text.
    [See]{.underline} 47 U.S.C. § 224(a)-(c) (1994).

[^8]: The attacher's proportionate share equaled the amount of space
    occupied by the attacher divided by the amount of total "usable
    space."

[^9]: The FCC regulations do not define carrying charges, but according
    to [Black's Law Dictionary]{.underline}, they are "\[e\]xpenses
    incident to property ownership, such as taxes and upkeep." [Black's
    Law Dictionary]{.underline} 205 (7th ed. 1999). The Department of
    Agriculture's regulations define carrying charges as incidental
    costs associated with storing a commodity before delivery under a
    sales contract, [see]{.underline} 7 C.F.R. § 1488.2(f) (1999), and
    the Securities and Exchange Commission defines them in the leverage
    contract context as service and interest charges, [see]{.underline}
    17 C.F.R. § 31.4(*l*) (1999).

[^10]: The local governments set the rates the cable companies could
    charge subscribers for "basic" services. Some states and the FCC set
    the rates the companies could charge for other services, such as
    Home Box Office. [See]{.underline} H.R. Rep. No. 98-934, at 24
    (1984); [reprinted in]{.underline} 1984 U.S.C.C.A.N. at 4661.

[^11]: Section 224(f) provides:

    > \(1\) A utility shall provide a cable television system or any
    > telecommunications carrier with nondiscriminatory access to any
    > pole, duct, conduit, or right-of-way owned or controlled by it.
    >
    > \(2\) Notwithstanding paragraph (1), a utility providing electric
    > service may deny a cable television system or any
    > telecommunications carrier access to its poles, ducts, conduits,
    > or rights-of-way, on a nondiscriminatory basis where there is
    > insufficient capacity and for reasons of safety, reliability, and
    > generally applicable engineering purposes.

[^12]: Both definitions of "utility" also require the ownership of
    poles, used at least in part, for wire communication.
    [Compare]{.underline} 47 U.S.C. § 224(a)(1) (1994),
    [with]{.underline} 47 U.S.C. § 224(a)(1) (Supp. II 1996). Thus, if
    an entity's poles do not have attachments that are transmitting
    "writing, signs, signals, pictures, and sounds of all kinds by aid
    of wire, cable or other like connection," 47 U.S.C. § 153(51) (Supp.
    II 1996), the entity is not a utility for purposes of the Act.

[^13]: [Compare]{.underline} 47 U.S.C. 224(a)(4) (1994),
    [with]{.underline} 47 U.S.C. § 224(a)(4) (Supp. II 1996). The 1996
    version of the Act defined telecommunications, telecommunications
    carrier, and telecommunications service as follows:
    "Telecommunications" is "the transmission, between or among points
    specified by the user, of information of the user's choosing,
    without change in the form or content of the information as sent and
    received," 47 U.S.C. § 153(43) (Supp. II 1996); "telecommunications
    carrier" is any provider of telecommunications services, 47 U.S.C. §
    153(44) (Supp. II 1996); "telecommunications service" is the
    "offering of telecommunications for a fee directly to the public, or
    to such classes of users as to be effectively available directly to
    the public, regardless of facilities used," 47 U.S.C. § 153(46)
    (Supp. II 1996).

[^14]: [See]{.underline} 47 U.S.C. § 224(e)(1) (Supp. II 1996). For
    purposes of this opinion, the term "telecommunications service
    providers" includes cable television companies that provide
    telecommunications services in addition to cable services.

[^15]: [See]{.underline} 47 U.S.C. § 224(e)(2), (3) (Supp. II 1996).
    Section 224(e)(2) requires utilities to apportion the costs of
    "unusable space" as follows:

    > A utility shall apportion the cost of providing space on a pole,
    > duct, conduit, or right-of-way other than the usable space among
    > entities so that such apportionment equals two-thirds of the costs
    > of providing space other than the usable space that would be
    > allocated to such entity under an equal apportionment of such
    > costs among all attaching entities.

    Section 224(e)(3) requires utilities to apportion the costs of
    "usable space" as follows:

    > A utility shall apportion the costs of providing usable space
    > among all entities according to the percentage of usable space
    > required for each entity.

[^16]: For poles, the "unusable space" factor =  x (the percentage of
    the total pole space that is unusable) x (the attacher's share of
    the bare costs of maintaining the pole) x (carrying charges). The
    "usable space" factor = (the percentage of total usable space
    occupied by the attacher) x (the percentage of total pole space that
    is usable) x (net costs of the bare pole) x (carrying charges). For
    conduits, the "unusable space" factor =  x (net linear costs of
    unusable space divided by the number of attachers) x (carrying
    charges). The "usable space" factor for conduits = ½ x (1 duct
    divided by the average number of ducts less adjustments for
    maintenance ducts) x (linear cost of usable conduit space) x
    (carrying charges). 47 C.F.R. §§ 1.1417, 1.1418 (1999); [Report and
    Order]{.underline}, 13 F.C.C.R. at 6820-33.

[^17]: For example, if the party seeking attachment complains that the
    utility is demanding an unreasonable rent (i.e., more than the
    maximum allowed under the FCC's formula), it bears the burden of
    proving that the rent demanded is more than the fully allocated
    costs of the pole.

[^18]: It is possible that the Commission's disposition of a complaint
    -- whether a dismissal or an order setting one or more terms -- may
    turn out to be provisional if, after the decision issues, the
    putative attacher decides to withdraw its request for an attachment.
    In this opinion, we assume for sake of discussion that the putative
    attacher does not withdraw its request and abides by the
    Commission's decision.

[^19]: The other utilities were Alabama Power Company, Georgia Power
    Company, Duke Power Company, Mississippi Power Company, Ohio Edison
    Company, and Florida Power Corporation.

[^20]: For the same reasons, the issue of whether mandatory overlashing
    effects a taking without just compensation is also not ripe for
    review. Utilities, under the FCC's rule, are required to allow
    overlashing of cables for no additional compensation unless the
    additional cables "significantly increase the burden on the pole."
    [Report and Order]{.underline}, 13 F.C.C.R. at 6807. This regulatory
    exception essentially reflects the exception, sometimes called the
    "engineering and safety exception," present in the Act.
    [See]{.underline} 47 U.S.C. § 224(f)(2). That exception did not
    prevent the [Gulf Power I]{.underline} panel from finding that the
    1996 Act authorized a taking, and neither does the regulatory
    exception prevent us from concluding that the FCC's overlashing rule
    authorizes a taking. Just compensation was too abstract to determine
    for the original statutory taking, and thus is also too abstract to
    determine for the taking authorized by the FCC's overlashing rule.
    [See]{.underline} [Gulf Power I]{.underline}, 187 F.3d at 1338; [see
    also]{.underline} [Abbott Lab.]{.underline}, 387 U.S. at 148-49, 87
    S. Ct. at 1515.

[^21]: As stated in part II [supra]{.underline}, questions of pure
    statutory construction fall within a [Chevron]{.underline} step one
    analysis. We, therefore, owe no deference to an agency's
    construction of a statute. [See]{.underline}
    [Cardoza-Fonseca]{.underline}, 480 U.S. at 446; 107 S. Ct. at 1221;
    [National Mining Ass'n]{.underline}, 153 F.3d at 1267.

[^22]: Specifically, the FCC cites Congress' use of the word "any" in
    the following two provisions:

    > The term "pole attachment" means [any]{.underline} attachment by a
    > cable television system or provider of telecommunications service
    > to a pole, duct, conduit, or right-of-way owned or controlled by a
    > utility.

    47 U.S.C. § 224(a)(4) (emphasis added).

    > This subsection shall apply to the rate for [any]{.underline} pole
    > attachment used by a cable television system solely to provide
    > cable service. Until the effective date of the regulations
    > required under subsection (e) of this section, this subsection
    > shall also apply to the rate for [any]{.underline} pole attachment
    > used by a cable system or [any]{.underline} telecommunications
    > carrier (to the extent such carrier is not a party to a pole
    > attachment agreement) to provide [any]{.underline}
    > telecommunications service.

    47 U.S.C. § 224(d)(3) (emphasis added).

[^23]: The term "wire communications" is defined as "the transmission of
    writing, signs, signals, pictures, and sounds of all kinds [by aid
    of wire, cable, or other like connection]{.underline} between the
    points of origin and reception of such transmission, including all
    instrumentalities, facilities, apparatus, and services (among other
    things, the receipt, forwarding, and delivery of communications)
    incidental to such transmission." 47 U.S.C. § 153(51) (emphasis
    added).

[^24]: The fact that power companies that do not use their poles to
    transmit wire communications are not covered by the Act and the
    FCC's implementing regulations, [see]{.underline}
    [supra]{.underline} nn.12, 23, further supports this narrow reading
    of the FCC's authority. The dissent takes issue with this reading of
    section 224, stating that we make more of the wire-based definition
    of utility than Congress intended. The dissent's reasoning is
    contrary to its own suggestion that we follow the straightforward
    statutory language of section 224. The language of section 224
    plainly says that attachments may be made to poles used for wire
    communications; it says nothing about attachments for wireless
    communications.

[^25]: The statutory language of section 224 itself prohibits the FCC
    from regulating pole attachments for wireless communications; thus,
    we may end our review with that language. An understanding of the
    communications industry and Congress' attempts at regulating it
    helps one understand why Congress wrote section 224 to prohibit the
    FCC from regulating wireless communications. To provide this
    understanding, we use normal tools of statutory construction and
    eliminate any hint of ambiguity in the statutory language.
    [See]{.underline} [Cardoza-Fonseca]{.underline}, 480 U.S. at 432
    n.12, 107 S. Ct. at 1213 n.12 ("As we have explained, the plain
    language of this statute appears to settle the question before us.
    Therefore, we look to the legislative history to determine only
    whether there is 'clearly expressed legislative intention' contrary
    to that language, which would require us to question the strong
    presumption that Congress expresses its intent through the language
    it chooses.") (quoting [United States v. James]{.underline}, 478
    U.S. 597, 606, 106 S. Ct. 3116, 3121, 92 L. Ed. 2d 483 (1986)); [see
    also]{.underline} [infra]{.underline} n.39 (Carnes, J., dissenting).

[^26]: [See]{.underline} [AT&T Corp. v. Iowa Util. Bd.]{.underline}, 525
    U.S. 366, 388, 119 S. Ct. 721, 734, 142 L. Ed. 2d 835 (1999)
    (defining bottleneck facilities as something akin to the essential
    facilities of antitrust law).

[^27]: The FCC seemed to recognize that this might be the case when it
    stated that, "\[t\]here are potential difficulties in applying the
    Commission's rules to wireless pole attachments." [Report and
    Order]{.underline}, 13 F.C.C.R. at 6799.

[^28]: The wireless communications section of the Telecommunications Act
    of 1996 follows the pole attachment section; as codified, however,
    the two sections do not follow one another. [Compare]{.underline}
    Pub. L. No. 104-104, §§ 703, 704, 110 Stat. 149 (1996),
    [with]{.underline} 47 U.S.C. §§ 224, 332 (Supp. II 1996).

[^29]: The dissent contends that our reading of section 224 ignores
    subsection (b)(1)'s mandate that the FCC provide just and reasonable
    rates for pole attachments. To the contrary, our reading gives
    effect to all parts of section 224 while the dissent's reading
    ignores the fact that subsections (d) and (e) narrow (b)(1)'s
    general mandate to set just and reasonable rates. The
    straightforward language of subsections (d) and (e) directs the FCC
    to establish two specific just and reasonable rates, one for cable
    television systems providing solely cable service and one for
    telecommunications carriers providing telecommunications service; no
    other rates are authorized.

[^30]: Although section 522 states that its definitions apply only to
    that subchapter, we give words a consistent meaning throughout the
    statute unless otherwise instructed by Congress. [See]{.underline}
    [Richards v. United States]{.underline}, 369 U.S. 1, 11, 82 S. Ct.
    585, 591-92, 7 L. Ed. 2d 492 (1962) ("We believe it fundamental that
    a section of a statute should not be read in isolation from the
    context of the whole Act.") (footnotes and internal quotations
    omitted); [Nipper v. Smith]{.underline}, 39 F.3d 1494, 1515 (11th
    Cir. 1994).

[^31]: Video programming means "programming provided by, or generally
    considered comparable to programming provided by, a television
    broadcast station." 47 U.S.C. § 522(20).

[^32]: The Commission urges us to adopt the D.C. Circuit's reasoning in
    [Texas Utilities Electric Co. v. FCC]{.underline}, 997 F.2d 925
    (D.C. Cir. 1993), in determining whether pole attachments used by a
    cable television company to provide Internet service are entitled to
    a regulated rent under the 1996 Act. We decline to do so. The D.C.
    Circuit decided [Texas Utilities Electric Co.]{.underline} before
    the 1996 amendments were enacted. Prior to 1996, section 224
    instructed the FCC to set a reasonable rent for "any attachment by a
    cable television system." 47 U.S.C. § 224(a)(4), (d)(1) (1994). It
    did not specify the particular services of a cable television system
    that were entitled to a regulated rent. Because Congress, in passing
    the 1978 Act, did not specify whether it "place\[d\] greater
    emphasis on the type of service to be distributed over the
    attachment or the type of entity doing the attaching," [Texas Utils.
    Elec. Co.]{.underline}, 997 F.2d at 930, the court found the statute
    ambiguous. The court, therefore, deferred to the FCC's
    interpretation that co-mingled services were covered by section 224.
    Today we are faced with an entirely different situation from that
    faced by the D.C. Circuit in [Texas Utilities Electric
    Co.]{.underline} because Congress, in 1996, amended the Act to
    eliminate the ambiguity at issue in that case. The new section
    224(d)(3) states that "solely cable services" receive regulated
    rents. (Telecommunications services, which also receive regulated
    rents are discussed in the text [infra]{.underline}.) Because we now
    know that the statute emphasizes the type of service over the type
    of entity acquiring the attachment, we have no need to follow the
    reasoning of [Texas Utilities Electric Co]{.underline}. Indeed, to
    follow that reasoning would be to disregard our duty under
    [Chevron]{.underline} to give effect to Congress' unambiguous
    intent. [Chevron,]{.underline} 467 U.S. at 842-43, 104 S. Ct. at
    2781.

[^33]: The FCC has given the following examples of telecommunications
    services: cellular telephone and paging services, mobile radio
    services; operator services, PCS (personal communications services);
    access to interexchange service; special access; wide area telephone
    service (WATS); toll-free service; 900 service; MTS; private line;
    telex; telegraph; video services; satellite services; and resale
    services. [In re Fed.-State Joint Bd. on Universal
    Serv.]{.underline}, 12 F.C.C.R. 8776 ¶ 780 (1997). Even if this list
    is not exhaustive, all of these examples are materially different
    from the Internet.

[^34]: Our conclusion that Congress' intent is ambiguous is consistent
    with our conclusion that section 224 does not authorize the FCC to
    regulate wireless carriers or the provision of Internet services
    because, as we state in the text, wireless carriers and Internet
    service are similar in kind to the attachers and services the 1996
    Act discusses. Dark fiber, however, is a different bird altogether.
    Neither the statute nor the legislative history discusses anything
    similar to dark fiber. Therefore, we cannot even begin to discern,
    let alone declare unambiguous, Congress' intent regarding dark
    fiber.

[^35]: Section 224(e)(2) directs a utility to "apportion the cost of
    providing space on a pole, duct, conduit, or right-of-way other than
    the usable space among entities," and section 224(e)(3) directs a
    utility to "apportion the cost of providing usable space among all
    entities." The FCC determined that dark fiber did not constitute a
    separate entity from its host attacher for purposes of sections
    224(e)(2) and (3).

[^36]: Our ruling on dark fiber is narrow; holding only that it was
    reasonable for the FCC to consider pure dark fiber and its host as
    one attaching entity. We are not presented with a factual scenario
    involving dark fiber that becomes lit, thus we do not address the
    status of such a fiber. Nor do we address dark fiber located within
    a cable whose attachment the FCC lacks authority to regulate under
    section 224(f).

[^37]: Section 224(f) reads as follows:

    > \(1\) A utility shall provide a cable television system or any
    > telecommunications carrier with nondiscriminatory access to any
    > pole, conduit, or right-of-way owned or controlled by it.
    >
    > \(2\) Notwithstanding paragraph (1), a utility providing electric
    > service may deny a cable television system or any
    > telecommunications carrier access to its poles, ducts, conduits,
    > or rights-of-way, on a non-discriminatory basis where there is
    > insufficient capacity and for reasons of safety, reliability and
    > generally applicable engineering purposes.

[^38]: Likewise, I agree with the majority opinion's conclusion
    regarding the petitioners' argument that the rate formula denies
    just compensation when wires are overlashed because no additional
    compensation is awarded. It is possible that in some cases the rate
    formula will provide just compensation for both the original
    attachment and the overlashed cables without additional
    compensation. Again, the petitioners have failed to show that the
    rate formula will deny just compensation in every case. Thus, their
    challenge is unripe.

[^39]: As noted in the majority opinion, we apply the two-step
    [Chevron]{.underline} analysis to agency interpretations of a
    statute. [See]{.underline} [Chevron U.S.A., Inc. v. Natural
    Resources Defense Council]{.underline}, 467 U.S. 837, 104 S. Ct.
    2778 (1984). "First, the court is to determine if the intent of
    Congress is clear; if so, that is the end of the matter. On the
    other hand, if Congress has not spoken directly to the precise
    question at issue, a second step of review comes into play, and the
    court must determine whether the agency's answer to the question
    Congress left open reflects a permissible construction of the
    statute." [Jaramillo v. INS]{.underline}, 1 F.3d 1149, 1152 (11th
    Cir. 1993) (en banc). We use the normal tools of statutory
    construction to judge whether Congress' intent is clear.
    [See]{.underline} [INS v. Cardoza Fonseca]{.underline}, 480 U.S.
    421, 446, 107 S. Ct. 1207, 1221 (1987) (quoting
    [Chevron]{.underline}, 467 U.S. at 843 n. 9, 104 S. Ct. at 2782 n.
    9).

[^40]: Pole attachment is defined in section 224(a)(4) as "any
    attachment \... to a pole, duct, conduit, or right-of-way owned or
    controlled by a utility." Utility is defined in section 224(a)(1) as
    "any person \... who owns or controls poles, ducts, conduits, or
    rights-of-way used, in whole or in part, for any wire
    communications."