COURT OFFERS LITTLE SYMPATHY FOR GLOBAL NAPS COMPLAINT
Three-judge panel of U.S. Appeals Court, D.C., seemed skeptical in oral argument Fri. on Global NAPS’ complaint that FCC should have preempted Mass. Dept. of Telecom & Energy (MDTE) in dispute over Verizon’s not paying reciprocal compensation for Internet-bound traffic (01-1192). MDTE in 1999 dismissed Global NAPS complaint on Verizon’s non- payment, and Global NAPS wanted FCC to preempt that decision and consider complaint itself. Commission turned down that request year later, saying it didn’t have authority to preempt MDTE in this case.
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Issue appeared to center on difference of opinion between CLEC Global NAPS and FCC over what preemption authority Telecom Act gave Commission when it said it could preempt “if a state commission fails to act to carry out its responsibility.” FCC argued that language in Sec. 252(e)(5) permitted it to preempt state PUC only if state agency “fails to act” -- and MDTE did act by issuing order denying Global NAPS complaint. Global NAPS argued that FCC had authority to go further and preempt whenever PUC didn’t “carry out its responsibility” adequately -- and it said MDTE hadn’t properly considered issues before ruling against Global NAPS.
Judges hearing case -- Harry Edwards, Judith Rogers and David Tatel -- seemed to lean toward FCC’s reading of language. MDTE decision may have been “untidy” but it was decision, Edwards said. Global NAPS attorney Christopher Savage said company had filed preemption request with FCC before MDTE issued its decision because state agency had taken so long to act. Edwards responded: “But then they issued a final order” and no matter how bad Global NAPS thought order was “you have to go a different route” and challenge order at MDTE level rather than seeking preemption. MDTE “did its job,” Tatel said.
FCC attorney Lisa Boehley said agency’s position was that Telecom Act didn’t give it authority to look at “merits” of state decisions but could step in only if state body hadn’t taken action for some reason. “As long as there is an order, the FCC does not address itself to the merits,” Boehley said. “It views its function as stepping in where there is no action.” Savage told judges “that can’t be a rational interpretation” of Telecom Act. Judges asked whether pending U.S. Supreme Court case involving federal court oversight of state PUC decisions (CD Dec 6 p1) had bearing on this case but Boehley said it didn’t “as a practical matter.” She said Supreme Court case would have more bearing on original MDTE decision than on FCC’s later one.