APPEALS COURT REMANDS WORLDCOM-QWEST DSL APPEAL
In somewhat complex case, U.S. Appeals Court, D.C., Fri. remanded FCC decision requiring ILECs to share their DSL facilities with competitors. Qwest and WorldCom, for different reasons, had appealed FCC’s decision that ILECs’ DSL services qualified for competitive access under Sec. 251 of Telecom Act. Act requires ILECs to make their facilities available through unbundling and resale. After sorting out several other legal issues, court ruled that FCC couldn’t base its DSL decision on standard that since had been vacated in different court suit.
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FCC in 1998, and on remand in 1999, said ILECs must provide competitive access because DSL fit Telecom Act’s definition of being either “telephone exchange service” or “exchange access,” so ILECs were required under Sec. 251 to provide access to it. However, court last year had vacated agency’s reciprocal compensation order because it was based on that same interpretation, with which court disagreed. “The Commission’s interpretation of ’telephone exchange service’ and ‘exchange access’ is in essence the one that we vacated and remanded in yet another case,” said opinion written by Judge Stephen Williams. Judges David Sentelle and Judith Rogers also were on panel.
Williams said FCC “does not seriously contest that its decision here… relied not only on the reciprocal compensation order [which court has] vacated but also on its defective reasoning.” In oral argument in Feb., FCC attorney John Ingle told court “we think in hindsight we should have asked for a 2nd remand” because 2 cases were “tripping over each other” (CD Feb 22 p3). FCC adopted new reciprocal compensation order last week to address court’s concerns on that case (CD April 20 p1).
Court also dealt with 2 other issues: (1) It denied alternative Qwest argument based on Telecom Act’s definition of ILEC. Qwest argued that Sec. 251 obligations could be applied only to ILECs and ILECs as defined by Telecom Act as providing certain services, of which DSL wasn’t one. (2) It decided it didn’t have to deal with legal issue whether WorldCom had standing in case. Even though WorldCom as CLEC gained from FCC’s DSL access decision, it appealed on same ground as Qwest’s first argument -- that FCC couldn’t rely on standard that was vacated in reciprocal compensation case. “Normally a party that has obtained the result that it sought in the agency proceeding cannot sue merely because it disagreed with the rationale,” Williams wrote. He said there was some precedent for giving WorldCom standing but since Qwest raised same question “we need not pursue” issue. Case actually takes WorldCom’s name: WorldCom v. FCC (00-1002).