A commercial mobile radio service provider in Puerto Rico filed a brief in the U.S. Court of Appeals for the Fifth Circuit to appeal universal service rules established by the Federal Communications Commission.
Celpage Inc. contends the FCC’s universal service rules are not in line with Congress’ universal service statute and are not reasonable. In particular, Celpage said the current rules will have a “grossly disproportionate” impact on CMRS carriers.
According to Luis Romero, Celpage president, the company is not so much appealing the intent of universal service rules as the process by which they will be enforced.
“Celpage has not asked the court to decide the desirability of universal availability of telephone service, or discounted telecommunications and information services for schools, libraries and rural health-care providers,” he said. “Surely, these are all worthy social goals; however, even the loftiest governmental goals must be adopted and implemented in compliance with constitutional and statutory authority.”
Celpage’s argument is that because the FCC has not defined CMRS and paging providers as eligible carriers that can make use of money collected by the USF, they therefore should not be required to pay as much into it as those that can dip into it. Currently, CMRS carriers are required to contribute an equal amount.
“The unique harm for CMRS carriers is that they for the most part do not qualify today as eligible carriers and therefore the contribution program has an inordinate impact on CMRS,” said Frederick Joyce, Celpage appellate attorney. Telecom utility carriers that put a dollar into the fund will be able to take about a dollar out of it for specific purposes, but a two-way or one-way paging carrier will not be able to do the same. “There’s not an overwhelmingly great demand in schools for beeper services,” he said.
Rob Hoggarth, vice president of paging and narrowband personal communications services at the Personal Communications Industry Association, said he also is concerned about the eligibility disparity, but supports the fundamental idea behind USF. He also said details of USF contributions by paging carriers still are being worked out through informal communication between the industry and the commission. “There is an active dialogue between the commission and the industry to make the system as fair as possible,” he said.
Celpage has received support from other CMRS carriers, some of which-such as Metrocall Inc.-have submitted requests to intervene, allowing them to be named as a sort of interested observer.
“The FCC simply ignored record evidence and expressions of congressional intent that ran counter to its vision of universal service,” Joyce said. “That utter disregard for the record epitomizes arbitrary and capricious agency decision-making.”
Celpage also called the universal service contribution requirements a hidden tax, one not enacted according to the constitutional requirements for assessing taxes-such as allowing an independent federal agency like the FCC to set its parameters instead of Congress. Also, it protests the collection of USF assessments by private companies.
The appeal joins several other consolidated appeals on universal service now pending before the Fifth Circuit, which has begun a briefing schedule expected to end sometime in May.
Celpage is the largest privately owned paging company in Puerto Rico and the second-largest overall on the island, with 130,000 subscribers in Puerto Rico and the U.S. Virgin Islands. Celpage also operates in Costa Rica and Argentina.
