USTA AND SBC APPEAL FCC'S TRIENNIAL REVIEW ORDER
One day after a summary of the FCC’s Triennial Review Order was published in the Federal Register, USTA and SBC filed an appeal in the U.S. Appeals Court, D.C., Wed. They asked the court to review the order that they said “purports to create new unbundling rules to replace those vacated by this court in [USTA] v. FCC.” A Verizon spokesman confirmed Verizon separately filed a notice of appeal to the D.C. Appeals Court.
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The petition by USTA and SBC argued that portions of the order “exceed the Commission’s jurisdiction or authority, violate the Communications Act of 1934 or the Administrative Procedure Act, fail to comply with the mandate of this court in United States Telecom Assn. v. FCC, or are arbitrary, capricious, an abuse of discretion or otherwise contrary to law.” The petitioners asked the court to “hold unlawful, vacate, enjoin and set aside those portions of the Triennial Review Order that are unlawful.”
Last week, the USTA, joined by BellSouth, Qwest and SBC, asked U.S. Appeals Court, D.C., to force the FCC to change a key part of the order that they said didn’t meet the court’s mandate (CD Aug 29 p1). The parties then asked the court for a writ of mandamus, arguing that the impairment standard devised by the order didn’t comply with the court’s May 2002 requirements. However, unlike a writ of mandamus, no appeals could have been filed until the Triennial Review Order appeared in the Federal Register Sept. 2.
USTA Pres. Walter McCormick said the FCC failed to issue a fair and consistent ruling in its order, leaving consumers and the U.S. economy “in the lurch.” He said the Commission’s latest rules “leave in place a system that distorts the market instead of keeping up with progress and spurring innovation.” He said the FCC had “twice been ordered back to the drawing board by the courts to fix these rules, but the Commission still hasn’t solved the problem.” He said the FCC actions “forced” the petitioners to “ask the court to again intervene and to compel the FCC to get the job done right.”
A BellSouth spokesman said the company didn’t join in the petition because it still was considering its options: “We've got 60 days to decide.” He said BellSouth supported the USTA and SBC: “We just haven’t decided if we want to do it the same way.” He said another option BellSouth was considering was asking the Commission for reconsideration of the order.
Qwest Senior Vp-Public Policy Steve Davis also supported the filing and said his company continued to review its legal options “to protect our customers and our shareholders from this extraordinary and unfair decision.” He said Qwest “disagrees with the FCC’s determination that huge corporations, like AT&T and MCI, should not be required to buy their own switching equipment. Our customers should not be required to subsidize these mammoth corporations.”