CLECs ‘Guaranteed’ Cost-Based Fees for Entrance Facilities, Mich. Lawyer Tells Supreme Court
Congress “guaranteed” that CLECs could lease entrance facilities at cost-based rates even when the same outlet is used for interconnection, lawyer John Bursch told the Supreme Court on behalf of Talk America and the Michigan Public Service Commission Wednesday. “Interconnection is the lifeblood of telecom,” Bursch said in oral argument on Talk America v. Michigan Bell and Isiogu et al. v. Michigan Bell. Michigan Bell parent AT&T has argued that it was no longer required to offer entrance facilities under Section 251(c)(3) of the Telecom Act because the commission phased out the mandate in its 2005 Triennial Review Remand Order. AT&T lawyer Scott Angstreich got the most sympathetic responses from Justice Antonin Scalia, who said Bursch wanted “the incumbents to build the cords out” to CLECs.
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Also at issue Wednesday was whether the lower court should have given deference to the FCC when the commission filed an amicus brief on behalf of CLECs and the Michigan commission, in a lower court case. Angstreich argued repeatedly that the commission was trying to slip a rule change through the back-door, without giving his company a chance to comment. Assistant Solicitor General Eric Miller said the commission’s brief ought to be given deference generally because it’s an expert agency, but its brief was also invited by the lower court. Whether or not the commission was legally entitled to deference, the case “certainly encourages us to throw our hands up,” Scalia said.
Justice Stephen Breyer wondered aloud whether the best way to handle the case was through the doctrine of “primary jurisdiction,” in which a pending case is stayed to allow a regulatory agency to make a final rulemaking. Breyer said the practice was common under the old Interstate Commerce Commission, and might be the most effective answer here. He admitted to being flummoxed by the vagaries of the case. He drew laughs when he asked for an explanation, “in English,” and when, responding to a compliment from Angstreich for having correctly framed AT&T’s position, he said: “I'm glad I'm right because I don’t know what I'm talking about.”
AT&T won its appeal in the 6th U.S. Circuit Court of Appeals, but judges in the 7th, 8th and 9th Circuits have ruled the other way. AT&T and other ILECs have been charging different rates for entrance facilities and it has no demonstrable effect on competition, Angstreich told the justices. “The notion that the price of cable will affect consumer prices is false.” If the commission now thinks that the old mandate on entrance facilities should apply, it should move through a rulemaking process -- and give AT&T a chance to fight against such a rule, Angstreich said. “I like our chances.”
On rebuttal, Bursch cited Section 251(c)(2) of the Telecom Act, which he said had language “including but limited to collocation.” The (c)(3) mandate had been phased out, but entrance facilities are still “embodied” in the act’s plain language, Bursch said. He likened it to a school board that requires its cafeterias to serve vegetables “including but not limited to broccoli and green beans,” but then, realizing that its children’s nutritional problems are worse than previously thought, temporarily requires the cafeteria to serve peas, too. If the school board later phases out the peas requirement, it doesn’t mean that a child’s request for peas isn’t honored under the broader, earlier mandate, Bursch said. A decision in the case is expected this summer.