Qwest, States Seek Court Deadline on FCC for 10th Circuit Remand
The FCC could face a court deadline to respond to a 2005 remand on its Universal Service Fund high-cost rules. In a petition for writ of mandamus filed Wednesday, Qwest and three state regulators urged the Denver-based 10th U.S. Circuit Court of Appeals to force the FCC to respond within 90 days of the writ’s release. Qwest, the Maine Public Utilities Commission, Vermont Public Service Board, and the Wyoming Public Service Commission said the FCC unreasonably delayed issuing new rules for its non-rural, high-cost fund, ignoring mandates from Congress and the 10th Circuit.
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If granted, the mandamus petition would add more pressure on the FCC to revamp USF and intercarrier compensation this year. The agency proposed comprehensive reform for the programs late last year, but tackled only a court remand on ISP-bound traffic compensation. That order is currently under appeal in the U.S. Court of Appeals for the District of Columbia Circuit.
“The FCC has simply ignored altogether both the Court’s remand and the agency’s fundamental obligations under Section 254,” Qwest and the states said. With respect to “non-rural” carriers, the FCC has failed for 13 years to fulfill its duty under Section 254 of the Communications Act to adopt a USF mechanism ensuring consumers in high-cost areas have access to telecom services at “reasonably comparable” rates to consumers in urban areas, they said. The 10th Circuit has twice - in 2001 and 2005 -- reversed and remanded the FCC’s non-rural, high-cost rules.
Mandamus is reasonable given the four-year delay, Qwest and the states said. “Courts have issued writs of mandamus for an agency’s failure to be ‘responsive to the court’s remand’ for periods shorter than the four years during which this remand has been pending,” they said. A recent case on ISP-bound traffic in the D.C. Circuit “illustrates the peril of relying” on any FCC assurances that action “is just around the corner,” they said. There, the D.C. Circuit rejected a Core Communications mandamus petition because the FCC said a decision was forthcoming. Four years later, the FCC had still failed to act, so the court granted Core’s request, adding that it had “repeatedly, mistakenly, put [its] faith in the Commission” (CD July 9 p1).
The FCC’s non-rural high-cost rules address carriers like Qwest that serve high-cost areas with too many lines to be considered “rural” by the statutory definition. The FCC’s initial rules determined that only non-rural carriers in states with per-line costs exceeding 135 percent of the nationwide average would receive funding. In 2001, the 10th Circuit said the FCC failed to support the order’s reasonableness. Two years later, the FCC responded by upping its benchmark to 138 percent, or within two standard deviations of a national urban rate average. On review in 2005, the 10th Circuit again reversed and remanded, finding that the FCC failed to design a support mechanism that met its statutory obligation to “preserve and advance universal service.”
The FCC opened a rulemaking within a year of the 2005 remand, but “let the matter drop” after collecting comments, Qwest and the states said. Late last year, the commission proposed overhauls for USF, but “failed even to mention the FCC’s obligation” to answer the remand, they said. Worse, if adopted, the proposals would “perpetuate this unlawful support mechanism,” they said. The proposals “would not change the criteria for determining which states are eligible for non-rural support; whether that support achieves rate comparability; or how the sufficiency of that support is evaluated,” they said.
The court is under no deadline to act on the Qwest petition, a company spokesman said. “We are hopeful that the court will ask expeditiously.” An FCC spokeswoman declined to comment.