Feature Group Lacks Standing to Challenge VoIP Access Charges, FCC Claims in Reply Brief
Feature Group IP West lacks standing to challenge the FCC’s requirement that the VoIP carrier be subject to intercarrier compensation rules on access charges, the FCC said in a reply brief to Feature’s appeal. In 2009, the FCC denied Feature Group’s petition for forbearance. Feature has now appealed the decision to the U.S. Court of Appeals for the D.C. Circuit, claiming that the commission’s denial was unreasonable.
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But the FCC said in its 70-page reply, released Friday, that Feature “failed to demonstrate that the elements of Article III standing -- injury, causation, and redressability -- are present in this case.” Instead, Feature “has presented only a vague and cursory statement of inchoate injury and has ignored altogether the required elements of causation and redressability,” the commission said in its reply.
Furthermore, the commission acted reasonably when it concluded that “the premise” of Feature’s petition, “that forbearing from section 251(g) would automatically result in the application of section 251(b)(5) to [Feature’s] traffic -- is incorrect because section 251(g) requires explicit superseding regulations to transition communications from the grandfathering rule of section 251(g) into a different regulatory framework,” the commission said in its brief. “Accordingly, even if section 251(g) applies to communications between [Feature] and LECs, forbearance would not automatically result in the application of a reciprocal-compensation regime, but instead would leave the LECs’ access charges free from regulation altogether,” the FCC said.
The case has roots that extend back to a similar forbearance petition from Core Wireless in 2006, the FCC said in its reply. “Core’s stated intent was to use the FCC’s forbearance authority to eliminate the access-charge regime and thereby to apply section 251(b)(5)’s reciprocal-compensation rules to all telecommunications traffic,” the brief said. Core claimed that by granting its forbearance from the “carve-out” created by Sec. 251(g) of the Telecommunications Act, the “reciprocal compensation regime would apply to all telecommunications services,” the FCC brief said. Core lost both its petition and its appeal to the D.C. Circuit, the FCC brief said.
Three months after Core’s appeal was denied for lack of standing, Feature filed its own forbearance petition, the FCC said in its brief. The VoIP company “explained that its business consists of receiving traffic from the Internet and sending it on to LECs for termination on the local telephone network,” the FCC said. Feature called the traffic “voice-embedded Internet communications,” describing it as “communications that ‘uses Internet Protocol to provide voice applications.'” Feature argued that such traffic isn’t covered by access charge rules, the FCC said in its brief.
But the FCC was similarly unmoved and denied Feature’s petition in 2009. Granting Feature’s petition while the commission was considering reforms of the intercarrier compensation regime “would result in a regulatory void,” the FCC said in its reply brief. After the FCC declined to reconsider its denial, Feature appealed to the D.C. Circuit. Oral arguments in the case are scheduled for May 10. The case number is 10-1257.