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ALABAMA POWER CO. v. F.C.C.

Nos. 00-14763, 00-15068 and 01-13058.

311 F.3d 1357 (2002)

ALABAMA POWER COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, United States of America, Respondents, Alabama Cable Telecommunications Association, Comcast Cablevision of Dothan, Inc., American Electric Power Service Corporation, Intervenors. Gulf Power Company, Petitioner, v. Federal Communications Commission, United States of America, Respondents, American Electric Power Service Corporation, Commonwealth Edison Company, Duke Energy Corporation, Intervenors. Alabama Power Company and Gulf Power Company, Petitioners, v. Federal Communications Commission and the United States, Respondents, Alabama Cable Telecommunications Association, Comcast Cablevision of Dothan, Inc., et al., and American Electric Power Service Corporation, Commonwealth Edison Company, et al., Intervenors.

United States Court of Appeals, Eleventh Circuit.

November 14, 2002.

Attorney(s) appearing for the Case

Jennifer Marie Buettner, John Russell Campbell, Andrew W. Tunnell, Balch & Bingham, LLP, Birmingham, AL, Ralph Alan Peterson, Beggs & Lane, Pensacola, FL, for Petitioners.

Raymond Alan Kowalski, Troutman Sanders, LLP, Washington, DC, for Gulf Power Co.

Robert J. Wiggers, Antitrust Div., App. Section, Robert B. Nicholson, U.S. Dept. of Justice/Antitrust Div., John E. Ingle, FCC-Office of the Gen. Counsel, Gregory M. Christopher, FCC, Washington, DC, for Respondents.

Geoffrey Charles Cook, Paul Glist, Brian Michael Josef, John D. Seiver, Cole, Raywid & Braverman, Thomas Peter Steindler, McDermott, Will & Emery, Washington, DC, Michael A. Gross, Florida Cable Telecommunications Ass'n, Tallahassee, for Intervenors.

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

As part of the Telecommunications Act of 1996, Congress amended the Pole Attachment Act of 1978 to give cable television companies the right to acquire space on the utility poles of power companies at rates established by a formula (the "Cable Rate"1) promulgated by the Federal Communications Commission ("FCC" or "Commission"). See 47 U.S.C. § 224. Under the regulatory scheme, if the parties are unable...

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