WASHINGTON-More than a year after the Federal Communications Commission declared that there would be intermodal porting in addition to wireless local number portability, rural local exchange carriers are still upset. Thursday they took their grievances to court, but didn’t seem to persuade the appeals panel.
Keeping in mind that the U.S. Court of Appeals for the District of Columbia Circuit often takes great pleasure in overturning the FCC, wireline carriers did not seem to be able to persuade the court that the FCC had not followed proper procedure when it established intermodal porting.
It seems the best the RLECs could hope for would be for the D.C. Circuit to tell the FCC to go through an analysis of the harms and benefits to small carriers of the intermodal rules. In the meantime, the FCC could not enforce intermodal porting.
“We won’t ask to unravel existing ports,” Gregory Whitaker told reporters after he argued on behalf of Central Texas Telephone Cooperative, one of the landline carriers arguing against intermodal porting rules.
Judge Merrick Garland rejected the notion that his court would overturn the intermodal rules just because the FCC did not do some analysis it could have under the Regulatory Flexibility Act. Indeed, Garland was hard on Aaron Panner, who argued on behalf of the U.S. Telecom Association. “In this case, whether it was good or not, there was notice,” Garland told Panner. Then after some more back and forth, he added: “We have addressed the issues until we are exhausted.”
Panner argued that the FCC should have issued a notice of proposed rulemaking instead of a clarification. “The parties were not placed on notice that there would be a departure from a prior rule,” said Panner.
In adopting the intermodal obligation, the FCC was answering a question posed by CTIA, which asked whether a LEC-any LEC-could refuse to port a number to a wireless carrier if the wireless carrier did not have a presence in a rate center. CTIA said on average wireless carriers had switches in only one out of eight rate centers, the geographic locations used to determine the cost of a wireline call. The FCC said that if a wireless carrier’s service area overlapped a rate center, then the LEC had to port the number and support local number portability with a carrier with which it might not have yet established an interconnection relationship.
Joel Marcus, arguing on behalf of the FCC, told the D.C. Circuit the agency was trying to avoid customer confusion.
“When you pick up your landline phone and call your neighbor’s phone number that has now been ported to a cell phone and there is now a toll charge,” confusion would occur, said Marcus. “Keep in mind that the policy is local competition.”
Marcus rebutted the RLEC argument that the overlap intermodal obligation amounted to geographic-or location-portability.
“It is not location portability because the number is not leaving the rate center,” said Marcus. “The cell phone is not physically tied to a rate center but in the wireline context, the address is proxy for the rate center because you cannot move the wire.”
While the intermodal porting rules have the greatest impact on rural carriers because many of them have not previously had to participate in number portability in rural America, large landline telephone carriers were also not pleased with the rule, said Panner. “Even for the large carriers, the incremental cost was not great, but it stuck in their craw,” he said.
