WASHINGTON-Cingular Wireless L.L.C. and AT&T Wireless Services Inc. Aug. 15 asked the Federal Communications Commission to stay the Nov. 24 wireless local number portability mandate.
The carriers say they “are merely seeking their day in court. The FCC has not acted on the Petition to Rescind, which raises a serious question of whether the commission has statutory authority to impose LNP obligations on commercial mobile radio services carriers given the express language of the Telecommunications Act of 1996. At this point, FCC action on the petition will not give the court time to review the legality of the LNP mandate. Therefore, this motion for stay is the only mechanism available to obtain judicial review before the LNP deadline,” according to the filing. “Absent expeditious action by the FCC, the carriers expect to seek relief from the U.S. Court of Appeals in the near future.”
Cingular and AT&T Wireless-and the rest of the wireless industry at various times and places-have argued that the FCC is overstepping its authority by mandating LNP on wireless because Congress authorized LNP only for wireline providers.
“An agency has no power to act without a delegation by Congress; it possesses only those powers granted by Congress. Stated another way, an agency does not possess all powers except those forbidden by Congress-otherwise agencies would have virtually limitless discretion,” said the carriers. “The FCC cannot adopt rules and impose mandates because Congress did not expressly preclude such action, especially where Congress left no `gap for the agency to fill.’ “
The Cingular/AT&T Wireless filing came one day after Verizon Wireless, which in June did an about-face to support WLNP, said the Wireless Carrier Group-which comprises Cingular, AT&T Wireless, Nextel Communications Inc., Alltel Corp. and Sprint Corp.-was planning to impose restrictions on customers who wish to port. Verizon urged the FCC to make these proposed practices illegal.
