Procedural Error Trips CLEC Appeal of ‘Backdated’ Forbearance Denial
A federal court denied an appeal related to the timeliness of an FCC forbearance order. In a petition for review at the 9th U.S. Circuit Court of Appeals, competitive local exchange carrier Fones4All said the FCC improperly released a backdated forbearance order one day after the statutory clock ran out. Citing two decisions by the D.C. Circuit, the court said Fones4All couldn’t challenge the timeliness issue in court until it appealed at the FCC. The court also upheld the FCC’s order on the merits.
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Fones4All said its petition should have been deemed granted because the text of the decision came out late. On the day of the deadline to review Fone4All’s petition, the FCC in a press release announced it had denied forbearance. The next day, the commission released a full order, backdated to say it was adopted by the commission on time.
Fones4All should have made its argument at the FCC before bringing it to court, the 9th Circuit said. Section 405 of the Communications Act says parties must file a reconsideration petition at the FCC before seeking judicial review if “the party seeking such review… relies on questions of fact or law upon which the Commission… has been afforded no opportunity to pass,” the court said. Though Fones4All filed some complaints about the decision with the FCC, it never “meaningfully” raised any of the backdating issues, the court said. “Fones4All not only failed to name or describe the backdating process, but it did not specifically object to the FCC’s practice of issuing a press release followed by a written order,” the court said. “Nor did Fones4All ever meaningfully assert that it considered the press release ineffective as a denial of its petition.”
The 9th Circuit also upheld the FCC’s denial of the Fones4All forbearance petition. The company sought relief from a rule freeing incumbent local exchange carriers of the obligation to provide CLECs with unbundled access to mass market switching. The FCC correctly determined that granting forbearance wouldn’t reinstate the requirement, the court said. “Even if Fones4All were not required to migrate its customers off ILEC switching, the ILECs would not be required to provide the switching.”
An FCC spokesman declined to comment on the 9th Circuit ruling. A lawyer for Fones4All didn’t return a request for comment by our deadline.