FCC IP Tech Transition Order Seen as Tough To Defeat in Court
The FCC IP technology transition order is unlikely to be shot down if challenged in court, said attorney Douglas Bonner of Womble Carlyle, who represents telecom, cable and VoIP companies in commission proceedings and related litigation. "I don't see obvious…
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grounds for the FCC to be overturned," said Bonner, speaking Tuesday on a Law Seminars International telebriefing on the FCC's IP technology transition order. He said the commission "tried hard to at least balance the interests" of CLEC and ILEC stakeholders, and had substantial discretion under the court's Chevron standard, which defers to reasonable agency decisions when interpreting ambiguous statutory provisions. Section 214 of the Communications Act, which governs telecom service discontinuances and was a basis for much of the order, "delegates a great deal of authority to the FCC to act," he said. Bennett Ross, a Wiley Rein attorney who represents telecom carriers, manufacturers and others, said, "Unfortunately, the D.C. Circuit doesn't always hold the FCC to a rigorous standard in justifying its reasoning." He suggested the court often gives FCC explanations too much deference under Chevron. Both Bonner and Ross said they didn't know if there would be a legal challenge. Ross voiced concern that the FCC's order would slow the IP transition by introducing new layers of inter-related and sometimes imprecise notification and discontinuance regulation as ILECs look to retire "antiquated" copper networks and withdraw or modify related services or their rates, terms and conditions. The FCC order aims to ensure, among other things, that competitors continue to have affordable access to wholesale broadband and voice services as incumbents migrate to IP-based services over fiber networks (see 1508060044). "I think the competitors, CLECs, got much of what they wanted," Bonner said.