EarthLink will consider legal action if the FCC sticks to its rea...

is expected to rule on the issue by midnight Wednesday (CD Nov 4 p1). FCC Chairman Kevin Martin said Monday the order would provide a new legal justification for the existing system. “I remain skeptical that such an order, which retains artificial and unsupported distinctions between types of Internet traffic, will be seen any more favorably by the court than the Commission’s two previous attempts,” Martin said. EarthLink expects Core Communications to appeal any order framed that way, Kenefick said. EarthLink has been absent from previous rounds of court action, because it wasn’t sure it had standing, but the company could file an amicus brief in the next battle, he said. EarthLink is a customer of Core and other carriers providing dial-up, not a carrier itself. Like Core, EarthLink wants the FCC to use reciprocal compensation rates for ISP traffic set by states, as it does for other traffic. ISPs are paid $0.0007 a minute for their traffic, significantly less than reciprocal compensation would pay. The FCC justifies the lower rate on grounds that dial-up ISP traffic is mostly one-way. If the Democrats take the White House, it could help Core’s and EarthLink’s case, Kenefick said, because Democrats are likelier to focus on promoting competitive alternatives in the access market.