NASUCA, Vt. Defend Standing in Truth-In-Billing Case

“The 11th Circuit will now have to decide whether to rule on the FCC motion,” said Patrick Pearlman, an attorney who represents NASUCA in the case. He said the court could: (1) “Rule on the motion and if denied, direct the FCC to file its brief on the merits.” (2) Delay ruling on the motion until after the oral argument, which “would give the court opportunity to ask questions about the motion to dismiss.” There’s no deadline for the court to rule, but Pearlman said the 11th Circuit “has been very prompt on most other matters filed and seems to be inclined to move cases very quickly. Based on that, I would think it will rule in the next 2 weeks.”

The case dates to March 10, when the FCC denied a NASUCA TIB petition, in the same order preempting states from regulating line items on wireless consumer bills (CD March 11 p1). NASUCA and Vt. each challenged that decision, saying the FCC had exceeded its Telecom Act authority. NASUCA also said the FCC violated Administrative Procedures Act (APA) provision. Vt. said the Commission interfered with state tax policy and authority. With NARUC as an intervener, NASUCA sued in the U.S. Appeals Court, Atlanta, and Vt. in the U.S. Appeals Court, N.Y. The appeals were consolidated in the 11th Circuit.

The FCC last month challenged the standing claimed by NASUCA and Vt., asking the court to suspend briefing in the case or extend the time to file its brief if the court denies the dismissal motion. The Commission said NASUCA lacks “associational standing,” because the group and its members have no “personal stake” in the proceeding and weren’t harmed by the preemption determination in the order, since no member of NASUCA is a state or state PUC. The FCC said Vt. wasn’t a party because it didn’t participate in the underlying TIB proceeding and wasn’t “aggrieved” by the order.

“NASUCA’s state members are charged by law with representing their constituents’ interests,” NASUCA told the court in defending its claim to standing. It said it does have an interest in the appeal because most of its members “are” state agencies and many “are” part of their state commissions: “Indeed, given their statutory charge, the harm suffered by NASUCA members as a result of the FCC’s preemption determination may be more acute than that suffered by states generally or even state utility commissions.” NASUCA said the order’s preemption of states from regulating line items “chills NASUCA members’ ability to take action at the state level to protect consumers” from wireless carriers’ unfair practices. It said it also has individual standing, based on procedural injury, to seek review of the FCC’s behavior under the Administrative Procedures Act in “converting NASUCA’s petition on carriers’ line items into a vehicle for preempting state laws regulating wireless billing practices without notice and comment.”

“I think our arguments are strong,” Pearlman said: “I would expect the court would likely rule on the motion fairly quickly and set [the case] back on the briefing schedule… The issues on the case are very important and broad-ranging and go to the heart of federalism and state rights. You are talking about state preemption, compliance with the notice and comment requirements under the [APA]. I got to believe the court wants to talk about that… If the court grants the motion for both NASUCA and Vermont, our part is over and the only question is whether NARUC can carry the appeal over.”

“It would be a poor result if NASUCA was bounced on the basis that it didn’t have injury in fact, because who would represent consumers if not for NASUCA?” NARUC Gen. Counsel Brad Ramsay asked: “Is this a precedent for excluding all NASUCA groups?” Ramsay said NASUCA has “a statutory charge to protect consumers. Congress has recognized NASUCA as a proper representative of consumers by designating them to name a person to the USF Joint Board. That means NASUCA is a proper representative in matters that deal with telecom issues.”

Defending its standing, Vt. told the court it in fact did participate in the underlying proceeding by filing comments in one of 2 dockets under which the FCC issued the order. “Even had it not so participated, Vermont is a party because the Commission specifically and expressly subjected the Vermont PSB to its order,” the state said. Vt. urged the court to deny the FCC motion to suspend briefing or “defer considering the motion until the Court hears the merits of the appeal.”

“The equities and the law lean in favor of the appeal standing,” Ramsay said. In making its decision, the court “will consider that Vermont didn’t have an adequate notice that preemption would be considered” in the proceeding and it “did file ex parte before sunshine when it discovered that,” as well as comments in a related docket, Ramsay told us. Vermont was “clearly injured and if the appeal is dismissed it has no other remedy,” Ramsay said.