ST. LOUIS-A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit heard nearly four hours of argument from opponents and proponents of currently stayed federal interconnection rules last Friday, but it is not expected to render a decision regarding the validity of these strictures for several months.
There were two schools of thought as to when the judges, who have been characterized as states-rights advocates and who refrained from asking many questions during the hearing, would rule on the consolidated case. Representatives of AT&T Corp. speculated that it could be Spring before a decision is released. On the other hand, a ruling could come sooner.
“Because there is a stay in place, they’re probably going to want to do this fairly quickly,” said Gerry Waldron, an attorney in the Washington, D.C., office of Covington & Burling, whose firm wrote and submitted a brief representing the views of wireless carriers and whose own Robert Long argued for 10 minutes in front of the court. “A couple of months is realistic, if not optimistic.”
The long-awaited hearing pulled attendees from all corners of the country to hear lawyers condense lengthy briefs into time limits of 40 or fewer minutes, including opening remarks and rebuttal time. The main courtroom, surprisingly, was not full, considering that a case of this stature was being heard.
Large, mid-sized and small local exchange carriers and a coalition of state commissioners are hopeful the court will rule in their favor regarding their opposition to certain parts of the interconnection and local competition order adopted by the Federal Communications Commission last August, parts that have been on hold since shortly after that action; their briefs have centered on a state’s right to regulate and negotiate telecommunications contracts and pricing, and on the FCC’s overstepping its regulatory boundaries by misinterpreting congressional intent.
On the other hand, the FCC and its supporters, which include the long-distance carriers, consumer groups, the wireless industry and several key members of Congress, want the court to reinstate the interconnection order as a whole, even though wireless carriers have stated during this stay process that they can continue to negotiate new contracts under rules contained in the Telecommunications Acts of 1996 and 1934.
“We face the great danger that the courts will take a piece-by-piece approach to review the intensely interwoven policies and orders before the FCC and the states,” said FCC Chairman Reed Hundt at a proxy-pricing workshop held last week in Washington, D.C. “The right answer is for the courts to show the traditional agency deference. Congress should care a great deal, I think, if courts don’t show appropriate deference to the FCC for the reason that we are the agent of Congress for implementing the law, and for the reason that we, and only we, have the role of issuing key decisions that show the interrelationship of issues.”
Hundt also pointed out that the court was not making a decision about retail rates, which he readily admitted were a states’-rights issue. “Rather, our rules set forth the just and reasonable standard under which state commissions are to calculate, determine and `establish’ the actual prices of these interconnection agreements.”
Judges listened to the interconnection arguments in this order:
large and mid-sized LECs, including the regional holding companies, GTE Corp. and Southern New England Telephone (40 minutes);
state commissioners, led by the Iowa Utilities Board (30 minutes);
small LECs, represented by the U.S. Telephone association (15 minutes)
the FCC (45 minutes);
the joint interveners, including AT&T Corp. and MCI Corp. (30 minutes);
the National Association of State Utility Consumer Advocates and the Consumer Federation of America (10 minutes); and
commercial mobile radio operators (10 minutes).
Covington & Burling’s Long, who mistakenly first approached the bench out of order, began his CMRS arguments with the same introduction of himself and his wireless constituency. “We were worried that we may be overlooked in this case,” he said. “But, I think we solved the problem.”
On a more serious note, Long pointed out to the judges that a CMRS-LEC interconnection issue did not have to be considered separately by the three-if the court agreed with the FCC order and with Congress’ amendment to the 1996 Telecom Act.
“This is the red thread that runs through this proceeding,” he said. “Section 2(b) (of the act) is an express exemption for CMRS-LEC interconnection,” due to its intra- and interstate nature. The FCC still maintains jurisdiction over such interconnection agreements, rather than the state commissions.
“We’re batting cleanup, and that is helpful and significant,” commented Tom Wheeler, president of the Cellular Telecommunications Industry Association, prior to the hearing. “What it says to me is that the court said `there are all these core interconnection issues and we’ll battle them out, but there also are some CMRS issues.’ The court recognizes the separability of the LEC case and the CMRS case.”
While Wheeler would not speculate as to how the court would rule-“I never second-guess judges or gods-“he did say that the court could split its vote, ruling for the LECs and against the FCC but continuing to support the CMRS items contained in the order.
Following the close of the session, attorneys from both sides were chary to gauge the judge’s leanings. However, Wayne Jackson, deputy director of media relations for AT&T Washington, D.C., told RCR, “our prime goal is to get competition into the marketplace. The rules are clear-anything that is in the way slows competition down.”
