WASHINGTON-A three-judge circuit court panel last week continued to deliberate whether to extend a temporary stay of the Federal Communications Commission’s interconnection and local competition rules. There are mixed industry opinions regarding how wireless carriers will be affected either way the court votes.
Since the temporary stay went into effect on Sept. 27, wireless carriers have been concerned about the status of pending interconnection negotiations with local exchange carriers and if LECs would continue to talk “in good faith” if they had any inkling the court would overturn all or parts of the FCC’s recently adopted order. When the judges do release a decision, it could involve any or all of four scenarios: no stay; staying the entire order; staying all pricing provisions of the order; or just staying proxy prices, which are scheduled to go into effect Nov. 8.
“What the stay is doing is muddying the water,” said Tom Wheeler, president of the Cellular Telecommunications Industry Association. “We are urging members to keep on negotiating at the state level. The law says there will be reciprocity, so that issue should move ahead.” Wheeler also pointed out that the Telecommunications Act of 1996 designated the FCC as final arbiter if agreements cannot be reached at the state level.
“Our members are extremely concerned over the outcome,” said Jay Kitchen, president of the Personal Communications Industry Association. “The effects of a stay would be devastating to the wireless industry. We worked very hard with the FCC and Congress on this, and the decisions that were made were right. They could be tweaked, but they are in the right direction.” While Kitchen also is urging his constituency to continue interconnection negotiations, he pointed out that paging carriers, while assured by law of mutual compensation, still have not reached that goal.
The three judges appointed to hear the case against the order are Pasco Bowman II, David Hansen and Roger Wollman. The panel heard oral arguments regarding a continuance of the stay Oct. 3 in Kansas City, although the actual reconsideration hearings, scheduled to begin early in the first-quarter 1997, will take place in St. Louis. The judges reportedly are not prone to quick decisions, and all are considered to be pro-states’ rights.
Following the short hearing, GTE Senior Vice President and General Counsel William Barr, who argued in favor of a stay on behalf of LECs, said, “The primary argument is that the FCC lacks the right to dictate (interconnection) prices to the states. We would suffer irreparable harm if no stay is granted.” Barr did say that LECs will move forward on the competition front “without delay,” even during this fractious period, but maintained that LECs “just want fair treatment and compensation equal to the parts of their networks competitors want to take.”
One Washington attorney who has made no secret of his concerns regarding the FCC’s action is Russell Lukas, a principal of Lukas, McGowan, Nace and Gutierrez. “It would be extraordinary for any court to stay FCC rules, but the FCC did an extraordinarily poor job of outlining national rules,” he told RCR. “If the court does decide to continue the stay, it probably would focus on the pricing issue.” Lukas believes the FCC overstepped its authority when it included proxy pricing in the order, a matter that traditionally has been handled at the state level.
