                                                                           [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                   FOR THE ELEVENTH CIRCUIT                      U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                   SEPTEMBER 12, 2000
                   -------------------------------------------
                                                                    THOMAS K. KAHN
                                 No. 98-6222                             CLERK
                  --------------------------------------------
                         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.

                                      2
                 -------------------------------------------
                               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.


                                     3
                 -------------------------------------------
                               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.


                                     4
                 -------------------------------------------
                               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.


                                     5
                -------------------------------------------
                              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.



                                    6
                       -------------------------------------------
                                     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
             ----------------------------------------------------------------
                               (September 12, 2000)

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

     (Opinion ____________________, 11th Cir., 19__, ____ F.3d _____)



Before TJOFLAT, EDMONDSON, BLACK, CARNES, BARKETT, MARCUS
and WILSON, Circuit Judges.

PER CURIAM:

    The Court having been polled at the request of one of the members of the

                                            7
Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.



                                       ENTERED FOR THE COURT:


                                       /S/ J. L. EDMONDSON
                                       United States Circuit Judge




____________
C    All other active judges of the Court were recused.
CARNES, Circuit Judge, concerning the denial of rehearing en banc:

      My opinion concurring in part and dissenting in part from the panel

decision, see Gulf Power Co. v. FCC, 208 F.3d 1263, 1279 (11th Cir. 2000),

explains why I think the panel majority erred in holding the Pole Attachment Act’s

regulated rate provisions do not extend to attachments used for wireless

communications and Internet services. There is no point in reiterating here what I

said there. Instead, I write separately upon the denial of rehearing en banc,


                                          8
because this case is a good example of why the absolute majority provision of

Federal Rule of Appellate Procedure 35(a) needs to be changed by Congress or by

the Supreme Court through the Rules Enabling Act, see 28 U.S.C. 2072. 1

       Rule 35(a) provides that: “A majority of the circuit judges who are in regular

active service may order that an appeal or other proceeding be heard or reheard by

the court of appeals en banc.” This Court, along with some of the other federal

courts of appeals, has interpreted “circuit judges who are in regular active service”

to include all active circuit judges serving on the court at the time of the poll

including those judges who are disqualified from participating. In other words, we

interpret the rule to mean that the votes of absolute majority, or seven of the twelve

judges in active service on our court now, are necessary to take a case en banc. I

do not quarrel with our interpretation of the rule, although we are on the short side

of a circuit split regarding it, see Judith A. McKenna et al., Federal Judicial Center,

Case Management Procedure in the Federal Courts of Appeals 23 (2000) (table

indicating that eight circuits do not count disqualified judges when calculating a

majority for en banc rehearing purposes, while five circuits do).2 But I do think


   1
    The operative language in Rule 35(a) is drawn from 28 U.S.C. § 46(c), which would need to
be amended by Congress or superceded by an amendment to the rule, see 28 U.S.C. § 2072 (b).
   2
    A good recounting of the history of the interpretative issue and a summary of the arguments
on both sides of it are contained in James J. Wheaton, Note, Playing with Numbers: Determining
the Majority of Judges Required to Grant En Banc Sittings in the United States Courts of

                                               9
that Rule 35(a) should be amended so that it is clear that disqualified judges are

not counted, in effect, as a vote against rehearing en banc.

        As the order denying rehearing en banc in this case indicates, five of the

twelve judges in active service on this Court are disqualified from participating in

this important case.3 That leaves only seven judges. Two of those seven judges

split on the legal issue in question – one of them authored the panel majority

opinion and the other one dissented from an important holding in it. Yet the

dissenting judge and the five remaining, non-disqualified judges in active service

are unable to vote the case en banc under Rule 35(a), no matter how wrong they

may think the panel majority’s holding is, unless the judge who authored the panel

majority opinion votes with them to do it. It sometimes happens that a judge who

authors a panel opinion votes to take the case en banc, see Songer v. Wainwright,

756 F.2d 799 (11th Cir. 1985)(Roney, J., specially concurring in the order granting




Appeals, 70 Va. L. Rev. 1505 (1984). See also Michael Ashley Stein, Uniformity in the Federal
Courts: A Proposal for Increasing the Use of En Banc Appellate Review, 54 U. Pitt. L. Rev. 805,
807 - 17, 825 - 27, 851 - 54 (1993).
   3
    Some may say that all the order indicates is that five judges did not participate and that they
obviously recused themselves, but not necessarily that they were disqualified from participating.
See generally 28 U.S.C. § 46(b)(“unless such judges cannot sit because recused or disqualified”).
Whether there is any real distinction between recusal and disqualification is a collateral issue
not material to the present discussion. What is material is that five judges of this Court in active
service felt compelled not to participate in the en banc poll. I will follow what appears to be the
practice of most commentators and decisions by using disqualification as a synonym for recusal.

                                                10
rehearing en banc), but not very often.4

       Assume with me, for present purposes, that this is not one of those rare cases

in which the judge who authored the majority opinion for the panel wants to have it

reviewed by the court sitting en banc – assume that judge has voted against en

banc rehearing. If this is one of the usual cases where the author of the panel

opinion votes against rehearing en banc, then this case could not be taken en banc

no matter how strongly the remaining six non-disqualified judges thought it should

be. En banc rehearing is not possible in such a situation because six is not seven,

and Rule 35(a) insists on seven votes, and it is not satisfied by any fewer number,

not even by six out of seven. The result is that the law of this circuit is decided not

on the basis of the votes of a majority of the seven non-disqualified judges of this

Court in active service, but instead by the vote of the senior judge from another

circuit who was on the panel and broke the tie created by the conflicting votes of

the two judges of this court in active service who were on the panel.5 That is how

Rule 35(a)’s absolute majority requirement operates.

   4
    Sometimes a judge will author or join a panel decision dictated by a prior panel precedent
that the judge feels should be changed by the en banc court. In that circumstance, which does not
occur with much frequency, it is not unusual for a judge who wrote or joined the panel
decision to vote to take the case en banc, in effect using it as a vehicle for overruling the prior
panel precedent.
   5
   In the usual case there will be a visiting judge or a senior judge of this Court sitting on a
panel with two active judges. That was the way more than 70 percent of our panels were
composed this court year.

                                                11
       As bad as the operation of Rule 35(a) is in this case, it can be worse. If one

more judge in active service on this Court had been disqualified, it would have

been impossible for the remaining six judges in active service to vote the case en

banc, even if the judge who authored the majority opinion was willing to take the

extraordinary step of voting for en banc rehearing.

       The rule as written can even operate to impose on the circuit and its judges

law with which every disqualified judge in active service disagrees. It is not

unusual for our court to sit in panels consisting of one active judge plus two

senior judges, or an active judge plus one senior judge and one visiting judge.6

With such panels, if six or more judges in active service are disqualified from

participating in a case, Rule 35(a) makes it possible for the law of the circuit to be

set by one senior judge and one visiting judge, even though every one of the non-

disqualified judges in active service (up to six in number) adamantly disagree with

them about what that law should be.

       It can be worse still. If the chief judge of the circuit declares an emergency,

which is defined to include the illness of a judge, the requirement that a majority of

each panel of a court of appeals be members (active or senior) of that court of



   6
    By “visiting judge” I mean one who was not appointed to sit on this Court. A visiting judge
can be a district judge from this or another circuit, or a senior circuit judge from another circuit.

                                                 12
appeals is lifted. See 28 U.S.C. § 46(b).7 Although not frequently invoked, this

emergency provision has recently resulted in a panel of our Court being composed

of one judge in active service and two visiting judges. See Parris v. The Miami

Herald Publ’g Co., 216 F.3d 1298, 1299 (11th Cir. 2000) (panel consisting of one

judge of this Court, a senior judge of another circuit, and a senior district court

judge). In that circumstance, if six or more judges in active service on this Court

were disqualified, Rule 35(a) could operate to have the law of the circuit made by

two visiting judges, and there would be nothing that the six active judges of this

Court who were not disqualified could do about it.

       What possible justification can there be for the absolute majority rule – why

make it possible to have the law of the circuit determined by one active judge

against the views of six others, or by a senior and a visiting judge or two visiting

judges against the views of six judges in active service? Why not let the decision

whether to rehear a case en banc be made by a majority of the judges in active

service who are not disqualified? More than a quarter of a century ago, Judge

Mansfield, joined by two other Second Circuit judges, put forward two


   7
     “In each circuit the court may authorize the hearing and determination of cases and
controversies by separate panels, each consisting of three judges, at least a majority of whom
shall be judges of that court, unless such judges cannot sit because recused or disqualified, or
unless the chief judge of that court certifies that there is an emergency including, but not limited
to, the unavailability of a judge of the court because of illness.” 28 U.S.C. § 46(b).

                                                 13
justifications for the absolute majority requirement of Rule 35(a), and 28 U.S.C. §

46(a) from which Rule 35(a) is drawn. See Zahn v. Int’l Paper Co., 469 F.2d 1033,

1041 (2d Cir. 1972)(Mansfield, J., concurring in the denial of rehearing en banc).

      First, Judge Mansfield suggested, the absolute majority rule seeks “to

achieve intracircuit uniformity by assuring that where questions of exceptional

importance are presented the law of the circuit will be established by the vote of a

majority of the full court rather than by a three-judge panel.” Id. If protecting

majority rule is the goal of Rule 35(a), then it is counterproductive. Under our

prior panel precedent rule, a panel decision is the law of the circuit unless and

until it is overruled by the Supreme Court or the en banc court. See United States

v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998)(“The law of this circuit is emphatic

that only the Supreme Court or this court sitting en banc can judicially overrule a

prior panel decision.”)(internal marks and citation omitted). Every other circuit, or

virtually every one, follows the same principle: The law of the circuit is

established not just by en banc decisions, but by panel decisions as well. See

United States v. Washington, 127 F.3d 510, 517 (6th Cir. 1997)(“In the Sixth

Circuit, as well as all other federal circuits, one panel cannot overrule a prior

panel’s published decision.”); Phillip M. Kannan, The Precedential Force of Panel

Law, 76 Marq. L. Rev. 755, 755-56 (1993) (“[A]ll thirteen circuits, with the


                                          14
possible exception of the Seventh Circuit, have developed the interpanel doctrine:

No panel can overrule the precedent established by any panel in the same circuit;

all panels are bound by prior panel decisions in the same circuit.”). The absolute

majority requirement does nothing to prevent panel decisions from establishing the

law of the circuit; instead, the requirement makes it more difficult, or impossible,

to have the law made in some panel decisions reviewed en banc.

      By insulating panel decisions from en banc review, the absolute majority

rule makes it less likely that the law of the circuit will represent the views of a

majority of the judges in active service. After all, which is a better bet to reflect

the views of seven of twelve active judges – the views of six of those judges, or the

views of one? And where a question of exceptional importance is involved,

shouldn’t the law of the circuit be decided by six out of twelve active judges

instead of by one active judge coupled with a visiting judge? With en banc worthy

issues is it not better to have the law of the circuit decided by six of twelve judges

in active service than by one of them, or by none of them – which is what can

happen under Rule 35(a) when a panel includes two senior judges or a senior and a

visiting judge.

      Judge Mansfield also suggested that the absolute majority requirement

“serves the further salutary purpose of limiting en banc hearings to questions of


                                           15
exceptional importance rather than allow the court to drift into the unfortunate

habit of requiring such hearings in every case where a minority of the court may

desire a decision by the full court.” Zahn, 469 F.2d at 1041. Two things about

that. First, the question is not whether to limit en banc review to questions of

exceptional importance, but who is better to decide whether a case meets that

standard and warrants en banc review – a majority of the judges in active service

who are not disqualified, or a minority of those non-disqualified judges, perhaps

only one of them? Second, whatever may have been the case a quarter of a

century ago, viewed from the perspective of federal appellate courts struggling

under the heavy and increasing caseloads of the present day, the notion that courts

might “drift” into the “unfortunate habit” of having too many en banc rehearings is

quaint. En banc rehearings take a lot of judicial resources and no court of appeals

is going to drift into the habit of having too many of them regardless of whether

Rule 35(a) is amended.

      Judge Adams of the Third Circuit also had a go at justifying the absolute

majority requirement. The case was Lewis v. Univ. of Pittsburgh, 725 F.2d 910

(3d Cir. 1983), and the vote was five for rehearing en banc, three against, and two

disqualified, id. at 928 - 29 (opinion of Adams, J., on the petition for rehearing).

Fearing that the result – denial of rehearing en banc when the vote was five to


                                          16
three in favor of it – “must appear quite unfair” to the losing litigant, Judge

Adams attempted to explain the reason for the absolute majority requirement. Id.

at 929. The “main reason” for the requirement, he said, “is that it insures that major

developments in the law of the Circuit reflect the participation of all members of

the Court.” Id. But, of course, because of the prior panel precedent rule the

absolute majority requirement does not do that at all. The decision of the panel

majority, even if it was composed of only one active judge (or none), is the law of

the circuit unless and until overruled en banc or by the Supreme Court. Coupled

with the prior panel precedent rule, the absolute majority requirement actually

operates to make it more likely that the law of the circuit will not represent the

views of a majority of the judges in active service. It does that by preventing the

non-disqualified active judges from voting a case en banc in some circumstances

even where they (because of their greater number) are more likely to reflect the

views of the majority of judges in active service than those, if any, voting against

en banc rehearing.

      Judge Adams also suggested that lowering the absolute majority bar would

lead to the law becoming more unsettled. See id. He gave as a hypothetical for his

court, which had ten active members, the situation in which there were five

recusals and a vote of three to two in favor of en banc rehearing. See id. Two


                                          17
things about that. First, Judge Adams did not explain why letting the law be

decided by three active judges instead of by two would unsettle it. Perhaps the

assumption is that en banc rehearings are unsettling, and therefore the fewer of

them the better. But leaving a panel opinion in place, particularly if en banc review

is sought because the panel opinion conflicts with one or more prior panel

decisions, or with a Supreme Court decision, can also unsettle the law. Besides,

the argument that the absolute majority requirement promotes stability in the law

by reducing the number of en banc rehearings knows no end. If cutting down on

the number of en banc rehearings is the goal, why limit the effort to recusal

situations? Why not raise the bar in all cases by requiring the vote of some super

majority, such as three-fifths or three-fourths, of all active judges?

      Rule 35(a) should be clarified through amendment, because the circuits are

split eight to five on the issue, see McKenna, supra, and there is no good reason

why a uniform rule should not be followed in all the circuits. For example, both

the Tenth Circuit and this circuit have twelve authorized judgeships. If five active

judges are disqualified and six of the remaining seven are convinced the panel

decision should be corrected en banc, in the Tenth Circuit it will be. In this circuit,

it will not be. A litigant who loses before a panel in this circuit should not be

treated differently in terms of the basic en banc procedures than one who loses


                                          18
before a panel in the same circumstances in another circuit. The definition of

“majority of the circuit judges who are in regular active service” should not vary

with geography.

      It is particularly unfortunate that the geographic lottery relating to Rule

35(a) has worked against en banc rehearing in this case, because this is an

important case that may affect every person who uses wireless communication or

Internet service in this country. The case comes to us on consolidated petitions for

review filed by power companies from around the country and involves the

competing interests of those companies, telephone companies, cable television

companies, wireless communication companies, Internet service providers, and of

course, consumers. A more national case could hardly be imagined. And, as the

Department of Justice points out, “because this case arose on Hobbs Act review of

FCC rules, it may present the last opportunity for any court to address the core,

industry-shaping issues presented here.” FCC’s Petition for Panel Rehearing and

Suggestion for Rehearing En Banc at 2. Yet the law on those industry-shaping

issues of exceptional importance is decided not by a majority of the judges in

active service on this Court but instead solely by one active judge of this Court

joined by a senior judge from another court.

      In his defense of the absolute majority requirement, Judge Mansfield said


                                         19
that it is not unfair, because “[i]n cases of exceptional importance, or where there is

a conflict between circuits, it may be expected that the Supreme Court will grant

certiorari and settle the questions in issue.” Zahn, 469 F.2d at 1041. We will see.




                                          20
