dissenting.
I respectfully dissent. I believe that Gui-dry Cable used the public right-of-way by digging under the street to lay its cable.
When a “statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construc*387tion of the statute.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). In applying that standard, the FCC’s interpretation of the Cable Act and what constitutes “use of a public right-of-way” is entitled to “considerable weight” and this court’s deference. See id. at 844, 104 S.Ct. at 2782-83.
The FCC interpreted the Cable Act and addressed what constitutes a cable system under the Act in In re Definition of a Cable Television System, 5 F.C.C.R. 7638 (1990). The FCC stated that Congress never intended the Cable Act to include systems that transmit their signals through radio waves instead of through physical cables or wires. Id. at 7639. The FCC’s discussion relies extensively on the notion that radio transmissions fall outside the scope and ordinary meaning of “cable.” See generally id. The FCC described the difference between services using radio waves and wires or cables as a “sharp contrast.” Id.
Nevertheless, the majority in this ease relies on the FCC’s comment that ‘“radio waves may cross a public right-of-way but do not use it,’ ” to conclude that the FCC distinguished between “crossing” and “using” for purposes of laying cable underneath a public street. Maj. Op. at 386 (quoting In re Definition of a Cable Television System, 5 F.C.C.R. at 7642). To the contrary, the FCC stated that if a facility employing “closed transmission paths,” such as cable instead of radio waves, “cross[es] a public right-of-way, it will be considered a cable system for purposes of the Cable Act ...” and, therefore, subject to local regulation. In re Definition of a Cable Television System, 5 F.C.C.R. at 7642. The FCC made repeated references to “crossing a public right-of-way” when explaining which systems fall outside the scope of the Cable Act’s private cable system exemption. See, e.g., id. at 7641 (“ ‘the exception is not available unless ... there is no crossing of a public right-of-way .... (internal citation omitted)). Furthermore, parties brought the issue whether “use” and “cross” are synonymous to the attention of the FCC and it regarded them as interchangeable:
We ... sought comment in the Notice “with respect to the question of what constitutes a crossing of a public right-of-way, .... ” As noted by several parties, the specific statutory language refers to “uses” of a public right-of-way and our use of the term “crossing” was not meant to imply anything different.
Id. at 7641-42.
Other court decisions demonstrate that the FCC’s interpretation of “use” as synonymous with “cross” is a permissible construction of the statute. Most notably, the Supreme Court described the FCC’s conclusion that a video system “is subject to the franchise requirement if its transmission lines ... use or cross any public right-of-way” as “[c]on-sistent with the plain terms of the statutory exemption.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 311, 113 S.Ct. 2096, 2100, 124 L.Ed.2d 211 (1993) (emphasis added). Likewise, two district courts stated that crossing a public right-of-way constitutes use. See Liberty Cable Co. v. City of New York, 893 F.Supp. 191, 195 (S.D.N.Y.), aff'd, 60 F.3d 961 (2d Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1262, 134 L.Ed.2d 210 (1996); Channel One Systems, Inc. v. Connecticut Dep’t of Pub. Util. Control, 639 F.Supp. 188, 199 (D.Conn.1986) (“a person providing cable television service using public rights-of-way by cables crossing under a public road ... is a cable operator and must obtain a franchise.”). The majority dismisses the aforementioned authority summarily despite acknowledging that cable crossing underneath a public street “is a ... physical interaction with city property.” Maj. Op. at 386.
Instead, the majority relies on the Supreme Court’s interpretation of “use” in a criminal statute. See id. (relying on Bailey v. United States, — U.S. -, -, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995)). I believe a criminal ease stating that a person is not “using” a gun locked in the trunk of a car, is clearly distinguishable from a civil case deciding whether a company is “using” a *388public street by crossing underneath it with a cable to reach more customers.
In addition, the majority regards the public street as “an obstacle that [Guidry Cable] must overcome to serve the entire ... complex” rather than “an asset in serving a myriad of independent subscribers.” Maj. Op. at 385. The majority neglects to consider, however, how Guidry Cable chose to overcome this “obstacle.” According to the FCC, a “sharp contrast” exists between facilities employing radio waves and those employing physical cable. In re Definition of a Cable Television System, 5 F.C.C.R. at 7639. By exempting facilities utilizing radio waves from local regulation, Congress provided an incentive to such facilities over facilities employing physical cables and wires.
Thus, Guidry Cable could have avoided “physical interaction” with city property, and thereby the franchise fees, by employing radio waves instead of physical cable to cross the city’s street. Guidry Cable instead chose to rely on cable, thereby requiring an excavation permit from the city and subjecting itself to the city’s franchise fees. The majority’s opinion, however, undermines the Cable Act’s preference for facilities employing radio waves rather than physical cables, allows Guidry Cable to escape part of its obligation in return for the excavation permit and denies the local government the ability to regulate industries which cross public rights-of-way.
I believe the FCC provided a reasonable and usual construction of the term “use.” Accordingly, I would affirm.