COURT REJECTS CHALLENGE TO FCC WIRELESS NUMBER PORTABILITY DECISION
The U.S. Appeals Court, D.C., Fri. turned down a wireless industry challenge to the FCC’s decision to retain the number portability requirement on wireless providers. CTIA and Verizon Wireless had challenged the Commission’s order last year that denied permanent forbearance from enforcement of the 1996 wireless portability rules.
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The court, in an opinion written by Judge Harry Edwards, denied part of the petition and dismissed another part as untimely. Judges Raymond Randolph and David Tatel also were on the panel. The untimely issue involved the petitioners’ challenge to the FCC’s basic statutory authority to impose wireless number portability. The court said that part of the suit “is nothing more than a challenge to the underlying regulations, promulgated in 1996, requiring wireless carriers to provide number portability.” That makes it a petition for judicial review to challenge an FCC final order, which must be filed within 60 days of the order’s entry: “The FCC promulgated the number portability rules in July 1996 and the petition for review in this case was not filed until August 2002.”
The court then denied another part of the suit, the challenge to the FCC’s actual decision not to forbear from enforcement of the wireless portability rules: “We conclude that the Commission’s interpretation and application of [Sec. 10(a) of the Telecom Act] was permissible and reasonable.” Challengers had argued that the Commission had misinterpreted that section, which requires it to forbear from enforcement if “enforcement is not necessary for the protection of consumers.” The definition of “necessary” in that context dominated oral argument on the case April 15. However, the court said the FCC properly construed the meaning of the word “necessary,” defining it “to mean that there must be a strong connection between what the agency does by way of regulation and what the agency permissibly seeks to achieve with that regulation.” Under that “reasonable interpretation of the forbearance statute,” the FCC “found that number portability rules are required to achieve the desired statutory goal of consumer protection,” Edwards wrote: “The Commission therefore did not err in declining to forbear from enforcement of the wireless number portability rules.”
The dispute stems from a 1996 FCC decision requiring wireless service providers to offer number portability -- the ability of consumers to keep their phone numbers when they switch wireless carriers -- by June 30, 1999. The Commission granted a CTIA request in 1999 for temporary forbearance from enforcement of those rules and extended the compliance deadline to Nov. 24, 2002. Verizon Wireless then sought permanent forbearance, which the FCC denied in July 2002, agreeing only to extend the deadline to Nov. 24, 2003. That last decision is what the challengers questioned in this appeal.
CTIA Pres. Tom Wheeler said the association was disappointed and said the court’s decision “increases the pressure on the FCC to do what they have yet to do” -- define how number portability should be implemented. There are only 24 more weeks until the wireless number portability deadline and “the basic ‘how-tos’ have yet to be addressed,” Wheeler said: “If there is to be number portability in November, the FCC must announce final rules by Labor Day or consumers will find chaos in the market.” CTIA has petitioned the agency to give guidance on the responsibilities of wireless and wireline carriers under LNP.
“Requiring local number portability is bad public policy,” Verizon Wireless said in response to the court’s ruling. Saying it would “continue to explore our legislative options,” Verizon Wireless said “the resources required to fulfill this new mandate will unnecessarily be redirected from our core business activities [of] expanding network quality and reach, improving customer service and initiating new services and products.”
Sen. Schumer (D-N.Y.) said it was “a great day for cellphone users because the last barrier to competition -- this lawsuit -- has been knocked down.” He encouraged wireless providers to “get portability implemented quickly to give consumers the freedom to get a new carrier when their provider isn’t doing the job.”
Legg Mason analysts said the ruling, while not surprising, eliminated wireless providers’ “best chance for a delay in the Nov. 24 deadline to implement the mandate, which is likely to increase competitive churn.” They said it was unlikely the courts would accept an appeal of the decision and it was doubtful Congress would move legislation to delay the portability requirement.
Meanwhile, the Vt. Public Service Board (PSB) wrote Senate Judiciary Committee ranking Democrat Leahy (Vt.) to urge him not to support a congressional delay of the LNP deadline. “The wireless communications industry is working hard to convince the Federal Communications Commission and the Congress to postpone the impending arrival of the deadline for wireless number portability,” the June 6 letter said. It said LNP was vital to foster competition: “The wireless industry should not be allowed to remain unregulated on the one hand, while on the other hand it throws roadblocks in front of true, effective competition.” The letter said that “after all these years to prepare, and all these delays, there is no valid reason, technical or otherwise, for the industry to be unable to provide number portability.”