An FCC ruling that Gulf Power’s pole attachment rates were...
An FCC ruling that Gulf Power’s pole attachment rates were too high will stand, the U.S. Court of Appeals for the D.C. Circuit said Tuesday (http://xrl.us/bmsxsc). Gulf Power, a wholly owned subsidiary of Southern Company, can’t argue that the Pole…
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Attachments Act fails to provide just compensation for power companies because that issue was already decided when Alabama Power, also a Southern Co. subsidiary, made a similar constitutional takings challenge in 2002, the court said. “Gulf and Alabama Power were under the common control and complete ownership of their parent entity,” the court said. “Both companies were thus servants to the same master.” The doctrine of issue preclusion bars “successive litigation of an issue of fact or law” already litigated, the court said. Alabama Power had argued that the pole attachment statute and regulations “fail to provide just compensation,” and sought compensation for the opportunity cost incurred when Alabama had to install mandatory attachments. The 11th U.S. Circuit Court of Appeals rejected the argument, saying the takings clause only requires such compensation when there’s actual crowding on the pole and demand for higher-valued uses. The D.C. Circuit also rejected Gulf’s argument that the FCC had misconstrued Alabama Power. “Gulf failed to meet its burden to show that its poles are at full capacity,” the court wrote.