FCC Must Explain ISP-Bound Traffic Compensation Rules by November
The FCC has until Nov. 5 to explain the statutory basis for a nine-year-old interim compensation scheme for ISP-bound traffic, the U.S. Appeals Court for the District of Columbia Circuit ruled Tuesday. It granted Core Communications’ petition for writ of mandamus. A promise by FCC Chairman Kevin Martin that the agency would wrap up a comprehensive intercarrier-compensation overhaul by that date (CD May 6 p1) held no water for the court. “We have heard this refrain before,” it said. “Having repeatedly, and mistakenly, put our faith in the Commission, we will not do so again.”
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The FCC has issued no order satisfying a 2002 remand by the court in WorldCom v. FCC. Core has filed two petitions seeking a writ of mandamus to hasten FCC action. In 2005, the court dismissed the first in but allowed Core to file again “in the event of significant additional delay.” In May oral arguments, an FCC lawyer told the court that “the chairman fully intends to do everything he can” to respond to the remand by early November. That’s not good enough, the court said. “The Chairman’s doing ‘everything he can’ may not suffice, as he may not be able to enforce his will on his fellow Commissioners,” it said. “At some point, promises are no longer enough, and we must end the game of ‘administrative keep-away.'”
The court gave the FCC six months from oral arguments to answer the writ. Core had asked the court to set a 60-day deadline, but the FCC lawyer’s statement changed matters. “We will give the Chairman a chance to meet” the date promised for action, it said. If the FCC still fails to respond, the court will throw out the ISP-bound traffic compensation rules Nov. 6, it said. No extensions will be granted, it added.
The FCC delay is “egregious” enough to justify mandamus, the court said. A federal court has power to “prevent the frustration of orders previously issued,” it said. The FCC’s six-year delay to respond to the court remand “has effectively nullified our determination that its interim rules are invalid, because our remand without vacatur left those rules in place,” it said. The agency “insulates its nullification of our decision from further review” because Core can’t mount a challenge to the rules until the FCC responds, it added.
That consumers are spurning the dial-up connections at issue makes the case no less urgent for Core, the court said. For seven years, Core has been subject to caps resulting in intercarrier compensation rates a fraction of others, “notwithstanding that this court has found invalid the only statutory basis the FCC has articulated to support them,” the court said.
The appeals court also rejected an FCC argument to delay granting mandamus until the court decides a separate Core appeal of a forbearance order (CD June 9 p7). The forbearance petition, denied by the FCC, sought in effect to replace access charges with reciprocal compensation. Oral arguments are Oct. 7. That appeal doesn’t offer an “adequate alternative means of attaining the relief Core desires,” the court said. Reversing the forbearance order would give Core future relief only, whereas a mandamus could bring retroactive relief, it said. Resolving the forbearance appeal first is unfavorable, the court said, because it “will not vindicate this court’s own interest in seeing that its mandate is honored.”
Even with the victory, Core will press forward on the forbearance appeal, said Michael Hazzard, Core’s lawyer in the case. “Core’s petitions are related, but not duplicative, as the court noted,” he said. Core is “thankful” for the ruling, and “looks forward to working with the FCC and other interested parties to resolve these longstanding issues,” he said. The FCC is “pleased the court has granted us what we asked for,” an agency spokesman said. “We'll move forward to comply with the court’s deadline.”