WASHINGTON-A federal appeals court appeared skeptical on Friday to a wireless carriers’ request that the court say the Federal Communications Commission did not act rationally when it said states may be allowed to create a special area code for wireless services.
“The [FCC] has indicated it too has reservations. It will do it on a case-by-case basis. Why now?” asked Judge Judith Rogers.
“This case raises serious ripeness concerns,” said James Carr, arguing on behalf of the FCC. A technology-service overlay “may or may not ever be approved by the FCC. It has made no decisions on TSOs.”
Michael Sullivan, arguing on behalf of Sprint PCS and Cingular Wireless L.L.C. said the wireless industry is opposed to TSOs because they discriminate against wireless.
A TSO “segregates the users of a particular service or technology into an area code that is not familiar,” said Sullivan.
The members of the U.S. Court of Appeals for the District of Columbia Circuit seemed to believe that instead of ruling on the broad policy issue of whether TSOs should be permissible, the wireless carriers should wait until the FCC actually approves a TSO and then should request a stay while the D.C. Circuit reviews the broad policy issue.
“We would be cutting off our nose to spite out face if we sought a stay. It might be that a carrier might accept a TSO even if the carrier believed the TSO to be absolutely illegal. The eggs are going to be pretty hard to unscramble,” argued Sullivan.
Sullivan’s argument was countered by Helen Mickiewicz of the staff of the California Public Utilities Commission who said that the creation of an area-code overlay takes a year so the wireless carriers would have enough time to seek a stay.
“It takes a minimum of a year to implement an area-code overlay. In my view, Sprint would have the opportunity to come and request a stay,” said Mickiewicz.
