U.S. Appeals Court, D.C., rejected Global NAPS (GNAPS) complaint ...
U.S. Appeals Court, D.C., rejected Global NAPS (GNAPS) complaint against FCC Tues., saying agency had acted reasonably in refusing to preempt Mass. Dept. of Telecom & Energy (DTE) in reciprocal compensation dispute (CD April 6 p5). GNAPS is competitive…
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telco with many ISP customers. It asked FCC to enter case after DTE failed to act for 8 months on GNAPS’ request for declaratory ruling that ISP-bound traffic was subject to reciprocal compensation under GNAPS’ agreement with Verizon. However, before FCC responded, DTE issued order dismissing complaint as moot in light of DTE’s decision in similar case involving Verizon and WorldCom. In that case, DTE had ruled that ISP-bound traffic wasn’t local and thus not subject to reciprocal compensation. FCC viewed DTE’s dismissal as legitimate action and said, as result, it no longer could preempt DTE for lack of action. FCC said Sec. 252 of Telecom Act permitted it to preempt only if state agency “fails to act.” Court’s opinion, written by Judge Harry Edwards, said FCC was reasonable in concluding that Telecom Act didn’t give it authority to go further and analyze why state agency had dismissed case. It doesn’t even matter “whether the state agency’s position is correct on the merits,” court said. “What matters is that the DTE did not fail to act, so the federal Commission has no basis upon which to preempt.” Edwards said “GNAPS’ remedy lies not in FCC preemption, but rather in judicial review of DTE’s order, whether in federal or in state court.” Judges Judith Rogers and David Tatel also were on panel that heard case.