FCC Commissioner Michael Copps yesterday said it is “highly unlikely” the FCC will write interim phone rules in the next two months after a federal appeals court overturned an order the top telecom regulator released last year.
“I don’t think that’s about to happen,” Copps said Tuesday afternoon in Washington, D.C,. at a convention for state regulators.
On March 2, the U.S. Court of Appeals for the District of Columbia Circuit overturned the FCC’s Triennial Review Order, which delegated authority to state regulators to determine which parts of the local phone network the regional Bells must lease to competitors at discounted rates. The court stayed its decision for 60 days.
Following the decision, FCC Chairman Michael Powell said he directed his staff to begin preparing new rules. However, Powell would need at least three commissioners to vote on adopting the new regulations at a time when the FCC majority has requested the nation’s highest court review the case. FCC commissioners Copps, Jonathan Adelstein and Kevin Martin have requested filing an appeal with the U.S. Supreme Court.
The Office of the Solicitor General will decide whether to file a petition for writ of certiorari on behalf of the FCC. Brad Ramsay, general counsel with the National Association of Regulatory Utility Commissioners (NARUC), says the Supreme Court agrees to hear seven out of 10 cases the Solicitor General files for appeal.
In speeches this week at the NARUC winter committee meetings, Martin and Copps said the federal appeals court decision has consequences extending far beyond the telecommunications industry because it affects the relationship between state and federal regulators elsewhere, such as at the U.S. Fish & Wildlife Service and the Federal Energy Regulatory Commission.
The Triennial Review Order (TRO) directed state regulators to compile massive amounts of data to determine whether to uphold or ease the local phone rules. At least some regulators have put those proceedings on hold following this month’s court decision, but some FCC commissioners have encouraged the states to continue gathering evidence based largely on the argument they made in the nearly 600-page TRO: states can gather a more complete record on the state of local phone competition than can a federal regulatory body.
“We need that granularity of evidence,” Copps said.
If the Solicitor General does not request an appeal or the Supreme Court refuses to review the D.C. Circuit Court’s decision, a question looms over the entire industry. What happens once the court’s decision takes effect in May?
CompTel/ASCENT Alliance CEO H. Russell Frisby, Jr. said today he believes the regional Bells will attempt to raise the rates they can charge competitors to lease their local phone networks. The day after the court decision, SBC Chairman and CEO Ed Whitacre sent letters to the chief executives of several competitive phone providers, requesting the companies enter private talks to negotiate wholesale rates. AT&T Corp., which has been expanding its local residential phone business across the country by leasing the Bell networks, was quick to reject the offer.
