Qwest failed to meet its burden to prove that it...
Qwest failed to meet its burden to prove that it could set its own prices and terms of service in Phoenix because it didn’t demonstrate that forbearing continued regulation would have preserved fair prices and business practices, protected consumers or…
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serve the public interest, the FCC said in its reply in the 10th U.S. Circuit Court of Appeals. “Qwest attempts to reverse the burden of proof by insisting that the commission was required to disprove each of the predicates that otherwise would justify forbearance under the statutes,” the commission said in its reply. It was filed with the Denver court on Monday. Not only is Qwest’s argument “at odds with the plain language of the statues,” it “would also have the perverse effect of forcing the commission to produce evidence to preserve provisions of the Communications Act whenever a carrier simply requests forbearance from those provisions of law and produces nothing else,” the commission’s reply said. “It is hard to imagine that Congress intended the competition-enhancing provisions of the act to be so easily nullified,” the 78-page reply stated. In any case, Qwest can’t raise the matter on the federal appeal because it didn’t bring it up with the commission first, as required by law, the agency said. Qwest has said it’s “hemorrhaging” market share in Phoenix to Cox and yet is still unfairly being treated as if it were a monopoly (CD Nov 23 p6). The company has also claimed in its appeal that the FCC “moved the goalposts” when it adopted a market power analysis and determined that Qwest wasn’t facing enough facilities-based competition for the Phoenix retail mass market (CD June 24 p1). A Qwest spokesman declined to comment. Industry is watching the Qwest case closely (CD Aug 27 p6). After Qwest appealed its forbearance denial, similar forbearance petitions -- by both Qwest and Verizon -- were withdrawn in other markets (CD June 24 p1). Some dozen CLECs are planning a consolidated intervenor’s brief on behalf of the FCC, said telecom lawyer Andrew Lipman of Bingham McCutchen, who is representing some of the CLECs. “I don’t think it’s likely the court will vacate the FCC’s decision,” he said, but CLECs are anxious because they saw themselves steadily squeezed in the Omaha market after Qwest won a forbearance there.