Three federal judges said Thurs. they found arguments on both sid...
Three federal judges said Thurs. they found arguments on both sides confusing as they tried to sort out WorldCom complaint about how FCC enforced pricing conditions attached to 1997 Bell Atlantic-Nynex merger. FCC had approved merger subject to several…
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conditions, including one requiring Bell Atlantic (now Verizon) to offer forward-looking prices to competitors seeking use of its facilities. WorldCom filed complaint with FCC later that year saying Bell Atlantic didn’t make good on pricing requirement. However, FCC delayed acting on it and finally denied it last year, saying condition was moot because forward-looking pricing now was law of land under Telecom Act and court rulings. In oral argument Thurs., Chief Judge Douglas Ginsburg and Judges David Sentelle and Raymond Randolph hammered WorldCom with questions about why court shouldn’t defer to FCC’s judgment. They asked why WorldCom thought condition hadn’t been met through interconnection agreements overseen by state regulators under Sec. 251-252 of the Telecom Act, as FCC contended. When WorldCom attorney Jodie Kelley suggested FCC could have made one pricing decision in response to complaint so WorldCom wouldn’t have to go to 7 different states through interconnection process, Randolph said that raised even more confusing jurisdictional questions. Kelley also argued that WorldCom was denied refunds and damages called for under merger conditions but not available through state route. Nor, she said, do state commissions have authority to rule on whether Bell Atlantic violated merger order. Court also grilled FCC attorney Rodgers Citron about how FCC could refuse to act on WorldCom complaint since merger conditions existed apart from state interconnection pricing process. “What enables you to deprive [WorldCom] of what you supposedly granted in the merger conditions,” Ginsburg asked Citron. Citron said agency “surveyed the landscape” and determined CLECs already were being provided with forward- looking pricing. “I don’t see what relief [WorldCom] could get from the Commission that they haven’t already gotten from the states,” he said. Judges also asked WorldCom’s Kelley whether FCC could have provided remedies that states couldn’t and she said only FCC had authority to provide damages and remedies such as revocation of licenses called for in merger conditions document.