APPEALS COURT HEARS QWEST SUIT AGAINST FCC PAGING RULES
U.S. Appeals Court, D.C., seemed more concerned Wed. about procedural questions than merits as it heard arguments in Qwest challenge to FCC’s pricing rules for traffic that travels between ILECs and paging companies. Issue, outgrowth of reciprocal compensation regime, arose as result of dispute between Qwest and TSR Wireless, one-way paging company in Ariz. Qwest had billed TRS for dedicated facilities needed to pass paging calls to TSR customers. FCC sided with paging company and said charges weren’t legal.
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Qwest argued in its brief that ILECs should be permitted to charge paging companies when they had to provide facilities such as T-1 lines to transport traffic to pagers. FCC countered that reciprocal compensation rules required payments to flow from originating carrier to terminating carrier. That meant ILEC, as originating carrier, couldn’t seek payment from paging company, which was terminating carrier, even if dedicated facilities were needed. FCC also disputed argument by ILECs that reciprocal compensation rules applied only to “traffic” and not to “facilities” used to transport that traffic. Qwest, on other hand, questioned whether reciprocal compensation regime should be applied to paging companies that didn’t have interconnection agreements with ILECs.
In oral argument, court, particularly Judge Stephen Williams, concentrated more on legalities of whether it was appropriate for court to handle this case. He hammered Qwest attorney Michael Kellogg with questions about appropriateness of bringing issue up after similar issues were raised in reviews of FCC’s interconnection pricing rules by 8th U.S. Appeals Court in St. Louis and by U.S. Supreme Court. Debate raised res judicata principle -- that issue is precluded from court action if it already has been argued and decided in another court proceeding. However, Kellogg contended that this issue was different from earlier ones and relied on part of the Telecom Act not dealt with in earlier cases. That led to long discussion with Williams on whether FCC relied on Sec. 332, along with Secs. 251-252, in its Local Competition Order.
As for merits of argument, Williams told parties he was “puzzled” by one thing: He had expected Qwest to bring up issue of “goldplating.” He said he could see argument that it wasn’t fair to let paging company ask ILECs for dedicated facilities without being charged for them at all. FCC attorney Richard Welch told Williams that ILECs could seek waiver from FCC if they felt paging company was making unreasonable demands. However, Williams asked whether that meant paging company could demand 100 T-1s and use them until FCC sorted through its waiver process. Welch said there had been few complaints and Qwest issue was based on “one facility in Arizona.”
Complicating issue is fact that ILEC petition for review of Common Carrier Bureau ruling on part of this issue has been pending at FCC for several years. Welch told judges that FCC had been faced with “crushing workload” as result of its continual duties to interpret Telecom Act. Besides, he said, “the petitioners would have the court believe they don’t know what the rule meant. They knew what the rule meant. They just didn’t like it.” Judges Judith Rogers and Douglas Ginsburg also were on panel.