COURT TO EXPLORE FCC SPECIAL ACCESS POLICY
The U.S. Appeals Court, D.C., announced it would convene a “merits panel” to consider a mandamus petition sought by a coalition of businesses and trade associations concerned about the FCC’s special access policies. In a tersely worded order March 23, the court said it took the action “on its own” and plans to seek briefs and hold an oral argument. The move surprised even the petitioners. Although mandamus petitions usually face an uphill battle, the court signaled its interest in Dec. by ordering the FCC to respond to the petition.
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The coalition includes AT&T, AT&T Wireless, CompTel/ASCENT, the eCommerce & Telecom Users Group (eTUG) and ITAA. They asked the court in the Nov. 5 mandamus petition (CD Nov 6 p10) to force the FCC to act on an emergency petition they had filed more than a year ago to gain relief from alleged overcharges by the Bells for special access services. The group asked the court to direct the FCC to initiate a rulemaking to reform its special access policies. They charged that the FCC prematurely lifted safeguards on Bell company special access services, so businesses pay “monopoly overcharges” they pass on to consumers.
A briefing schedule hasn’t be set, nor a date for the oral argument. But the court clerk’s office has indicated to the coalition that the dates will be announced “soon.” Brian Moir, counsel for eTug, said a merits panel is rarely used, and based on conversations with long-time Washington attorneys “this is probably the first time on any telecom case.” The panel will be made up of D.C. Circuit judges.
The FCC in a Jan. 9 filing urged the D.C. Circuit to deny the coalition’s petition and pointed out that the court upheld the FCC’s special access pricing rules in a WorldCom case in 2001. The agency said the special access pricing rules were adopted as part of the FCC’s effort to tie deregulation to the growth of competition: “The rules permit additional pricing flexibility for special access services when certain competitive thresholds are met in a given metropolitan area.”
The Commission argued it hadn’t delayed action on an AT&T request for rulemaking as charged in the mandamus petition. AT&T in Oct. 2002 filed the petition for rulemaking and asked the agency to vacate its pricing flexibility order. The FCC said AT&T and the others filed the mandamus petition only a little more than a year later: “The Commission has not unreasonably, much less ‘egregiously,’ delayed acting [on the] request. AT&T’s rulemaking request… has been pending for less than a year- and-a-half, and rests upon complicated -- and controverted -- factual assertions and legal conclusions. Under these circumstances, and given the Commission’s limited resources and competing responsibilities, such a lapse of time is hardly unreasonable.”