WASHINGTON-As expected, the Federal Communications Commission refused to stay its recently adopted order regarding local competition and interconnection by denying last week a joint petition filed Aug. 28 by GTE Corp. and Southern New England Telephone Co. and a single motion filed Sept. 6 by U S West Inc.
A three-judge panel at the U.S. Court of Appeals in St. Louis, which will be hearing interconnection challenges posed by the three companies and others, was supposed to rule on similar stay motions last Friday along with petitions for an expedited hearing.
In its order released Sept. 17, the commission wrote that the parties had not met the four criteria for interim relief: they are likely to prevail on the merits; they will suffer irreparable harm if a stay is not granted; other interested parties will not be harmed if the stay is granted; and public interest favors a stay.
The commission found that claims made by GTE and SNET that they would be forced to charge “below-cost” prices were a “mischaracterization” of its proposed pricing methodology, and that nowhere in sections 251 or 252 was any incumbent local exchange carrier entitled to recovery of historical costs that exceed economic costs. The commission also disputed claims that local exchange carriers would be hampered by the proxy prices forwarded in the order; if LECs disagree with the prices, they then have an incentive to present cost studies that prove such pricing is wrong, and many LECs may never be subject to proxy pricing in any event.
“In our view, it is important that the regulations established in the [order] not be stayed while negotiation and arbitration proceedings are taking place,” the FCC wrote. It also reiterated Congress’ desire that the new rules remain in place, and that state arbitrators resolve any interconnection disputes within nine months of a LECs’ receipt of an interconnection request from a possible competitor.
Just prior to the commission’s release of the order last week, the Common Carrier Bureau in conjunction with the Office of the General Counsel held a panel discussion regarding enforcement procedures and the interconnection order. Panelist Saul Fisher, vice president of the law telesector resources group at Nynex, said he “can’t resist stating that the FCC has overstepped its bounds on state issues” and that the order “would be hotly debated in a pending appeal.” He urged the commission to forbear from moving in on any traditional states’ issues during this time of appeal, and that the FCC was not in a position, personnel-wise, to handle the flood of problems that will be forthcoming as a result of the order.
MCI Communications Corp. has had its problems with interconnection in the past, and general counsel Jonathan Sallet wants enforcement at the state and federal level to be “swift, certain and simple.” He maintained that most action should come from state commissions, which can act on a problem much more quickly than can the FCC. “If a dispute is over FCC rules, you should first go there. If state rules are in question, go to the state first,” he said.
Richard Metzger, general counsel for the Association for Local Telecommunications Services, advised against what he called “forum shopping” for the correct agency or court to solve interconnection problems. “The FCC should solve all of this,” he said. “The courts will be eager to remand, anyway. The goal is to reach interconnection agreements that are enforceable in the absence of regulation-those that contain performance standards and penalties.”
