Great Lakes Comnet Pans FCC Defense of Access-Charge Order Favoring AT&T
Great Lakes Comnet criticized the FCC defense of an order that sided with AT&T in finding certain GLC access-charge tariffs exceeded a CLEC benchmark rule. The FCC justification (see 1510060033) of its interpretation of Rule 61.26 “is inconsistent with the…
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Rule’s plain language, contravenes the FCC’s past pronouncements as to its meaning, and involves mutually inconsistent interpretations of different subparts of Rule 61.26,” said GLC and subsidiary Westphalia Telephone in their reply brief Wednesday to the U.S. Court of Appeals for the D.C. Circuit (Great Lakes Comnet v. FCC, No. 15-1064). GLC said the FCC order “retroactively changed the plain meaning of Rule 61.26 in an adjudicatory proceeding. The agency found the intermediate carrier was a CLEC -- and thus couldn’t have access tariffs above an ILEC competitor’s rates -- even though its tandem-switch and transport services didn’t directly serve retail end users. GLC said that finding “nullifies the carve-out" from unpaid bill-and-keep traffic exchanges the FCC created for intermediate carriers in a 2011 intercarrier-compensation overhaul. GLC said the FCC also erred in (1) not giving it a rural exemption, (2) finding AT&T Michigan was the competing ILEC, (3) engaging in an unconstitutional taking by forcing it to offer services for free through bill-and-keep, (4) applying the decision retroactively, and (5) making certain statute-of-limitations findings, which GLC said the commission had conceded. The company said the FCC brief made various misstatements of facts, including suggesting long-distance carriers such as AT&T have “no choice” of intermediate carriage to reach local networks, which GLC said it did. GLC also disputed FCC claims that the company (1) “inserted itself in the traffic stream," when instead it had responded to an AT&T service request, (2) “stipulated that it serves urban areas,” when it noted only that it had transport facilities in both urban and rural areas, not that it "served" (originated/terminated traffic from/to) end users in urban areas, and (3) engaged in improper billing to “disguise” traffic, when it made a “simple billing mistake” that was quickly fixed.