FCC Considers Challenging Truth-In-Billing Standing

Vt. and NASUCA earlier this year filed separate appeals of the FCC billing decision preempting state controls on line items on wireless consumer bills. Both said the FCC exceeded its statutory authority under the Telecom Act. NASUCA also said the FCC didn’t comply with the Administrative Procedure Act, and Vt. said the Commission interfered with state tax policy and authority. With the National Regulatory Utilities Commission (NARUC) as an intervener in both cases, NASUCA sued in the U.S. Appeals Court, Atlanta, and Vt. in the U.S. Appeals Court, N.Y. Both filed March 28, the appeals later were consolidated in the 11th Circuit.

“Under the Communications Act you have to be a part of the FCC proceeding before you can file a petition in a court,” said an attorney monitoring the case: “You first have to file an application for review with the FCC before you go to court if you didn’t participate in the proceeding below.”

Assuming the court strikes Vt., the issue will be whether NARUC can go forward with the Vt. petition. “NARUC [timely] joined the Vermont brief as an intervener and NARUC did participate in the [FCC] proceeding, so the FCC can’t bounce it out,” NARUC Gen. Counsel Brad Ramsay said. Any problems the FCC might see in the Vermont petition wouldn’t apply to NARUC, he said. Moreover, Ramsay said, “all the issues raised by Vermont go directly to issues raised by NASUCA.” Said a 2nd attorney: “My understanding is that once you intervene and [that request] is granted, you are in and even if the main party is out, you are still in… Dismissal of Vermont wouldn’t lead to dismissal of NARUC, because NARUC has an interest different from [the petitioners'] and not adequately protected by Vermont and NASUCA.”

But “just joining the brief of a petitioner doesn’t make you a petitioner,” the first attorney said. If NARUC lacks petitioner status and the “court determines that Vermont has no standing then remedy here is that Vermont brief would be stricken… NARUC would not have standing to continue the case on its own,” this source said. The attorney noted that none of the briefs lists NARUC as a petitioner.

“I can’t see the 11th Circuit knocking Vermont out,” the 2nd attorney said: “If the FCC thought Vermont doesn’t have standing [in the case,] why didn’t it file a motion 3 months ago? This is an effort to eliminate one of the more damaging aspects of its decision from consideration by the court.” The attorney also said participation in the underlying FCC proceeding “is not the only basis to appeal the decision. If you are [among] persons that are aggrieved by an agency decision, even if you didn’t participate in the agency proceeding, I think you still have a standing to appeal because your interests are affected… All state governments would now have standing to appeal because their interests have been affected.”

It’s not clear what the FCC would gain by contesting Vt.’s standing, sources said. “Unless there are problems with NASUCA’s standing as well, it’s hard to tell how the FCC would benefit from knocking Vermont off,” the first attorney said, “but it’s one less petitioner to deal with.” An FCC reply to the NASUCA and Vt. opening briefs is due 30 days after their Sept. 9 filing. “The FCC is going to write just one reply to both opening briefs, so it needs to know what issues to focus on,” the attorney said: “If Vermont is no longer in the case, the FCC can ignore its arguments and concentrate on the issues that were raised by NASUCA.”

But NASUCA and Vt. raised many of the same issues and “NASUCA adopted and incorporated Vermont’s arguments by reference, which is allowed under the 11th Circuit rules,” said Patrick Pearlman, an attorney representing NASUCA in the case. “We have a complete overlap between the petitions.” That means the FCC still would have to deal with the Vt. petition’s issue, even if it’s dismissed, he said. “Even if Vermont is out of the game, it means not much [for the case] if NASUCA stays in,” the first attorney said: “NASUCA was the main party involved in the proceeding on the first place.”

“My only guess why would the FCC bother to get Vermont out is mainly because the FCC doesn’t want the standing rules overlooked,” the first attorney said: “There is a statutory requirement and the FCC would make sure that the court knows that a petitioner wanted to circumvent that.”