SENSENBRENNER, CONYERS WANT SUPREME COURT TO HEAR TRO CASE
House Judiciary Committee Chmn. Sensenbrenner (R-Wis.) and Committee ranking Democrat Conyers (D-Mich.) urged the Justice Dept. to appeal the U.S. Appeals Court, D.C., ruling last week that vacated part of the FCC’s Triennial Review Order. “If access to the Bell companies’ local networks is no longer available -- a result that this decision threatens -- millions of Americans will lose the ability to purchase service from the local telephone provider of their choice,” said the March 11 letter, which was addressed to Attorney Gen. John Ashcroft and also sent to Solicitor Gen. Ted Olson and DoJ Antitrust Chief Hewitt Pate.
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The letter said the case “raises a host of questions concerning the continued applicability of the market-opening provisions” of the Telecom Act: “Furthermore, the decisions raises substantial questions concerning the continued application of well-established principles of administrative law and procedure, including those pertaining to federal- state relations.” Sensenbrenner has raised telecom antitrust issues before and has said he was concerned about the DoJ’s approach in the Trinko v Verizon case. Sensenbrenner held a hearing last year on telecom antitrust, which focused mainly on the Trinko case.
USTA said the letter was a response to “baseless and alarmist” claims by AT&T. “A ‘potential disruption of the nation’s telephone service’ would only occur if these companies, with no facilities of their own, refused to negotiate market-based terms in a subsidy-free environment,” said a USTA spokesman.
ALTS Pres. John Windhausen said he was expecting more letters from Capitol Hill to the DoJ urging an appeal to the Supreme Court. Windhausen said ALTS lawyers have already met with Olson and staff regarding the case. “They pointed out why the ruling was inconsistent with past Supreme Court decisions and other court rulings,” he said. Windhausen said the ALTS attorneys also emphasized that the case goes beyond telecom policy: “It affects all federal government agencies and how power is delegated to state commissions, including those that focus on energy, water and other issue. The impact on the federal-state system could be huge.”
Several members of Congress have spoken in support of the court’s ruling, including House Speaker Hastert (R-Ill.). In a news release, Hastert said: “It is the duty of the FCC to follow our will in the ‘96 Telecom Act as the framework for fostering competitive and innovative services for the American consumer. The FCC made the right call on broadband and they should be commended for it. But in regards to local phone competition, the FCC’s decision was inconsistent with the law and causes uncertainty in the marketplace. The longer litigation continues, the longer it will take for American consumers to enjoy the benefits of real competition. As a veteran of the ‘96 Act, let me simply state that the FCC should consider foregoing appeal, and instead focus on getting the Triennial Review Order right by following congressional intent.” Reps. Shimkus (R-Ill.), Radonovich (R-Cal.), Gonzalez (D-Tex.), and Meeks (D-N.Y.) have also delivered floor statements praising the court and urging the FCC not to appeal the decision and instead begin developing rules that comply with the court’s decision.
NARUC also said it supports Sensenbrenner’s position. “The D.C. Circuit’s decision has raised major new questions of federalism and competition in ways that are sure to send aftershocks through the federal-state relationship in a range of policy areas, from energy to environmental policy,” said Mich. Comr. Robert Nelson, chmn. of NARUC’s Telecom Committee.