Transcom Now Challenges Two State Commissions in Court Over Halo Wireless Rulings

Transcom’s court proceedings, initiated in July in Tennessee and October in Georgia, both seek to reassert its status as an enhanced service provider and overturn elements of the commission orders. State commissions lack the authority to judge Transcom’s status the way they have, the company insists. Various commissions, including those in Missouri, Wisconsin, Tennessee and Georgia, condemned the activities of Halo in the weeks before and sometimes after its July liquidation (CD Aug 2 p8). Although many commission cases fixed on Halo, several rulings also judged the nature of Transcom and offered claims about its operations and status as an enhanced service provider. Transcom has appealed verdicts against Halo and itself in the Wisconsin and Georgia public service commissions in late July through September (CD Sept 4 p11) with no success. The Georgia PSC denied Transcom Sept. 5 and the Wisconsin PSC did so Sept. 27.

In U.S. District Court in Atlanta, Transcom is now “seeking declaratory and injunctive relief in the nature of an administrative appeal from two orders of the Georgia Public Service Commission,” according to a document entered Wednesday. These two orders, issued amid the Halo case, “are both preempted by and contrary to federal law, including the federal Communications Act,” Transcom alleged. The PSC has “no authority” over these issues, it said, repeating arguments made before some PUCs. The company wants appellate review of the orders in Georgia and is bringing “federal claims for a regulatory taking and violation of substantive due process, and claims relating to the Commerce Clause,” it said. The U.S. District Court in Nashville is allowing Transcom to move forward with its complaints, the court said Thursday. Both AT&T and TDS have attempted to stop the Tennessee proceeding in objections Transcom addressed Thursday. Transcom is challenging two Tennessee Regulatory Authority decisions, according to court documents.

Transcom also wants money from AT&T and TDS Telecom in both states. Its Tennessee proposal included “requests for declaratory relief, injunctive relief, and damages (which are sought from the private defendants only), all under federal law.” In Georgia, Transcom is “asserting claims for declaratory and injunctive relief, and for damages against the nongovernmental Defendants,” which include AT&T Georgia, TDS Telecom and other smaller companies that confronted Halo and Transcom earlier this year.

The central issue concerns Transcom’s identity. Transcom again refers to its “regulatory classification under federal law” and asserts it “does not provide telecommunications and is not a common carrier and does not provide any telecommunications service in general, or telephone toll service in particular,” in its Georgia court filing this week. It “buys telecommunications as an end user and then provides nonregulated and non-common carrier enhanced/information service,” contrary to claims that Transcom is not an enhanced service provider, is a common carrier, and provides telephone toll, it said. Transcom cited its own past bankruptcy proceedings, several years earlier, in which the court declared Transcom was an ESP three times and therefore not subject to access charges. These bankruptcy court findings “are the very source of Transcom’s existence” and AT&T, other ILECs and the Georgia PSC have refused to accept them, according to Transcom. The PSC’s actions amount to “an unconstitutional taking,” Transcom said. The PSC failed to clarify on the interstate and IP-based nature of its services, it added.

Commissions are still sorting out the liquidated Halo’s proceedings in states from Florida to Texas to Arkansas to California this fall (CD Oct 4 p17). In addition to these two civil cases, Transcom is also engaged in the year-old RE: FCC 11-161 proceeding in the 10th U.S. Circuit Court of Appeals on different matters. Transcom declined comment.