EIGHTH CIRCUIT WINS LOTTERY TO HEAR TRIENNIAL UNE ORDER APPEALS
The 8th U.S. Appeals Court, St. Louis, was assigned Tues. by the Judicial Panel on Multidistrict Litigation to hear appeals of the FCC’s Triennial UNE Review Order. This is the same appeals court that heard the first major Telecom Act challenge involving interconnection requirements.
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The 8th Circuit is a “good circuit for NARUC,” as it “has demonstrated respect for the role states play” in implementing of the Telecom Act of 1996 “in its previous decisions,” said Bradford Ramsay, NARUC gen. counsel. CompTel Pres. Russell Frisby said it would be a “win for competitors” if the case stayed in the 8th Circuit: “The 8th Circuit has a track record of being cognizant of the very important role states play in implementing the Telecom Act. It is as experienced or even more experienced as the D.C. Circuit in these matters.”
However, USTA Pres. Walter McCormick said the appeal “should be expeditiously transferred to the D.C. Circuit… We strongly believe that with its vast experience and current involvement in these extremely important and complex issues, the D.C. Circuit is the proper circuit court to hear the appeal of the FCC’s Triennial Review Order.” A USTA spokeswoman confirmed the USTA anticipated filing a motion to transfer before the 8th Circuit asking the court to move the appeals hearing to the D.C. Circuit. Ramsay said he believed Bells had filed the writ of mandamus “to keep [the case] in the D.C. Circuit,” as they had anticipated that it may not win the lottery. “I would be astounded” if the Bells didn’t try to move the hearing to the D.C. Circuit, he said.
A spokesman for BellSouth, which hasn’t filed an appeal and was still considering its options, said the appeal should go to the D.C. Circuit, because it ruled “in the first place” in 2000 that the FCC should revise its UNE rules. However, a CLEC industry source said the 8th Circuit was a “logical place” to hear the appeals because it heard the FCC’s original unbundling rules in 1997: “This is a related matter, and that court,” which also heard some later related appeals, “has a great familiarity with it.” The source said CLECs would oppose any Bell motion to transfer. The source drew a comparison with the Mon. decision of the 3rd U.S. Appeals Court, Philadelphia, which denied a motion to transfer appeals of the media ownership rules: “It’s the same type of situation.”
Legg Mason analysts said despite the results of the lottery, “the process of determining the venue is probably not over.” They said if Bells file a motion to transfer, “it would be then up to the 8th Circuit to decide whether to transfer the case, presumably relatively soon this month or next.” The analysts said it wasn’t clear what the 8th Circuit would do then, but, they said, “if it wants to keep the case, we believe it would have a stronger claim than other circuits would have had versus the D.C. Circuit, given previous 8th Circuit ruling on the FCC’s unbundling/interconnection rules.”
The 8th Appeals Court blocked the original FCC local competition order, saying the Commission trespassed on state authority, before being overturned by the Supreme Court. “The Eighth Circuit’s sympathy for states’ rights is probably why a petition was filed there as part of the IXC/CLEC strategy to try to keep the D.C. Circuit from being awarded the case,” the analysts said.
Meanwhile, the U.S. Appeals Court, D.C., ordered the FCC to respond by noon Sept. 25 to the Triennial Review mandamus petition filed last month by BellSouth, Qwest, SBC and USTA. The court said it would accept a joint reply, not to exceed 15 pages, by noon Oct. 2. The terse one-paragraph order didn’t comment on the issues raised by the mandamus petition. The petitioners had asked the court to force the FCC to change a key part of its Triennial UNE Review Order within 45 days on the ground that it didn’t meet the court’s mandate. The incumbents argued that the impairment standard devised by the order didn’t meet the court’s May 2002 remand.
McCormick said USTA was “encouraged” by the court’s action: “The D.C. Circuit has a long history with these issues and we are pleased that the Court will force the Commission to explain why it did not follow the court’s previous order.” This is the 2nd time this month that the D.C. Circuit has ordered the FCC to respond to a mandamus petition. On Sept. 9 the court ordered a response to a petition filed by 3 wireless carriers seeking relief from a Nov. 24 wireless local number portability deadline.
Legg Mason analysts questioned whether the Bells would win the relief they had thought through their writ of mandamus petition. However, they said, “given that government agency responses are not the norm with writ of mandamus petitions, the fact that the court asked the FCC to respond suggests that it is at least considering the petition.” In addition, they said, the D.C. Circuit panel of judges considering the writ petition was the same one that issued the USTA decision, which “demonstrated a marked lack of deference to the FCC. If, in the unlikely event that the D.C. Circuit refused to transfer the writ petition to the 8th Circuit and granted the petition and struck down all the rules, there would be nothing for the 8th circuit to review,” Legg Mason said.