United States Court of Appeals Addressed Rural Telephone Carrier Challenges

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United States Court of Appeals Addressed Rural Telephone Carrier Challenges

Some very interesting news today courtesy of TMCnet.com. Today, in two closely related cases, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) reached contrary results in challenges to two orders of the Federal Communications Commission (FCC) that address the rules under which one telecommunications carrier must transfer or "port" a subscriber's telephone number to another carrier, the Wireless-to-Wireless Order and the Intermodal Order. (Central Texas Telephone Cooperative, Inc. et al. v FCC, Case No. 03-1405, United States Telecommunications Assc. et al. v FCC, Case No. 03-1414). The court stayed the FCC's ability to enforce the Intermodal Order against small entities pending the FCC's completion of a Regulatory Flexibility Analysis to consider the impact of the order on small wireless carriers and small telephone companies as required by the Regulatory Flexibility Act (RFA), but affirmed the obligations of wireless carriers to port under the Wireless-to-Wireless Order. The petitioners in both cases had argued that the orders violated the Administrative Procedure Act (APA) and Regulatory Flexibility Act (RFA) because in adopting the orders the FCC changed its porting rules without providing proper notice to the public and seeking public comment as required by the APA and without considering the impact on small telephone companies and small wireless carriers as required by the RFA. The FCC argued that it had merely "interpreted" its rules rather than changing them.

In the Intermodal Case (which involves the obligations of telephone companies to port numbers to wireless companies), the court held that the FCC had changed its rules rather than just interpreting them, but that any failure to fully comply with APA was harmless. Although the court found that any failure to comply with the APA was harmless, the court held that the FCC had failed to consider the impact of its action on small wireless carriers and rural telephone companies as required by the RFA. Accordingly, the court stayed the FCC from enforcing the orders against small carriers until the FCC has conducted and published the required RFA analysis.

In the Wireless Case (which involved the obligations of wireless carriers to port numbers to one another), the Court determined that the obligations imposed by the FCC flowed from its previous number portability order and that the Wireless-to-Wireless Order, therefore, was an interpretive order that did not require further action under the APA or RFA.

Greg Whiteaker, a principal with Bennet & Bennet, PLLC in Washington, DC and the lead counsel to the rural carrier intervenors in the Intermodal Case and petitioners in the Wireless-to-Wireless case, stated, "We are pleased that the court recognized that the FCC changed the porting obligations of rural telephone companies without considering the impact on rural companies and that the court did not condone this conduct. The FCC order shifted costs from the nationwide wireless carriers to small and rural carriers. This occurred because the Intermodal Order could be interpreted to require rural carriers to port locally rated numbers to the nationwide wireless carriers and to complete calls to those ported numbers, even though there are no local facilities for completing the calls and no means for the rural carriers to recover the cost of transporting such calls. Rural carriers, in effect, were forced to subsidize the large carriers' networks in rural areas. The FCC had ignored the cost to rural carriers of transporting calls to ported numbers that are served by distant switches. Now that the court has stayed the enforcement of the Intermodal Order, the FCC will have to consider rural rating and routing issues that have been pending for years. This was the rural carrier's primary goal in participating in these cases, to get the FCC to address the impact on rural carriers."

John Smith, the former executive vice president and general manager and current interim general manager to Leaco Rural Telephone Cooperative, Inc., one of the petitioners in the Wireless-to-Wireless case and an intervenor in the Intermodal Case, stated, "The FCC had just ignored the impact of the porting orders on rural carriers. It was as if calls were supposed to be magically completed even when there were no facilities for completing them."

The Wireless-to-Wireless Order required one wireless carrier (the Old Service Provider (OSP)) to port a number to another wireless carrier (the New Service Provider (NSP)) even were the NSP had no point of interconnection or facilities in the area where the ported number was rated. The Intermodal Order required a landline telephone company to port a number to a wireless carrier whenever the wireless carrier's coverage area overlapped the area were the number is rated even if the porting-in wireless carrier had no point of interconnection or facilities in the area.

About Bennet & Bennet
Bennet & Bennet, PLLC is a full service telecommunications law firm specializing in the representation of rural telephone companies and telephone cooperatives. The firm has a particular expertise in wireless telecommunications matters gained through the representation of cellular carriers, wireless cable providers, paging companies, specialized mobile radio (SMR) operators, personal communications service (PCS) providers and broadband wireless companies. The firm is unique because it also employs degreed electrical engineers to provide radio frequency (RF) design, network and technical support to its wireless clients.

The combined legal and technical capabilities of the firm allow it to assist its clients with bid evaluations, interconnection negotiations, vendor contracts, tower siting issues and all facets of its telecommunications clients' needs where a thorough understanding of detailed engineering specifications, and the ability to integrate that understanding into the necessary legal documents, is essential to the successful implementation of telecommunications systems. The firm negotiates and structures acquisitions, mergers and license transfers; develops auction strategies for those seeking spectrum through the FCC auction process; counsels clients on regulatory compliance; and participates in licensing and rulemaking proceedings before the FCC. Bennet & Bennet has participated in virtually every major FCC rulemaking proceeding affecting the interests of rural wireless telecommunications providers. The firm also represents its clients' interests before state regulatory bodies, federal courts and Congress.

In addition to its representation of rural telephone companies and wireless telecommunications providers, Bennet & Bennet has significant experience in the representation of competitive local exchange carriers, broadcasters, cable companies, equipment manufacturers, video programmers, resellers, private land mobile and microwave licensees, and providers of long distance and international telecommunications services. Bennet & Bennet also advises and counsels clients interested in the provision of advanced telecommunications services utilizing emerging telecommunications technologies. 



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