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, it did seem the wireline carriers in two separate arguments were at a disadvantage as they tried to argue that the commission 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. It does not appear that any rural customers who may have cut the cord-few if any since many states have been waiting for the appeals case before making RLECs participate in intermodal porting-would be required to switch back to a wire.
“We won’t ask to unravel existing ports,” Gregory Whitaker told reporters after he argued on behalf of Central Texas Telephone Cooperative.
Judge Merrick Garland rejected the notion that the D.C. Circuit would overturn the intermodal rules because the Regulatory Flexibility Act, which requires the FCC to do the analysis it did not do, instructs the court to send the rules back. “The RFA does not use the word vacate; it says remand,” he said.
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 was arguing 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.
