Wednesday, January 28, 2004 - The Progress & Freedom Foundation Blog

TRO TKO, Part Deux

Adding to Randy's posting regarding the triennial review oral argument this morning (see two postings, below):

Delegation - As Randy indicated, Judge Edwards appeared to be skeptical of the FCC's broad delegation on switching (and thus, UNE-P), stating that all of the cases the FCC relied on in its brief on delegation were "inapposite" and that the Telecom Act provides the states with a narrow, limited role. Judge Edwards also insinuated that the FCC saw the triennial review as a "headache" and wanted to send it somewhere else. Additionally, Judge Williams questioned whether aspects of NARUC's argument on delegation were ripe for review.

Obviously, it's dangerous to predict how judges view a case based upon oral argument. But this line of questioning, including several other questions from the panel about what the proper remedy should be if the delegation were held to be unlawful (no easy issue, to say the least), has to look ominous from the state...uh, well at least the NARUC, perspective. And given the complexity of the case, I would be surprised to see a decision come out as quickly as some have been hoping for (i.e., February or March). In short, the possibility that states will conduct a healthy portion of their mass market switching proceedings, only to have their authority to do so struck down, appeared to increase today.

Hot cuts - this portion of the TRO probably won the runner-up award for argument time. Judge Randolph questioned the evidentiary value of the FCC's hot cut analysis, where it appeared to base its findings on "assertions" and "statements" made by commenting parties. Judge Williams probed the parties on questions such as scalability, the batch hot cut process, and whether switches are more like airplanes or dams.

Otherwise, Judge Williams drove the debate almost single-handedly on the other issues raised today, including aspects of the impairment standard, the interplay between sections 251 and 271 (and the appropriate pricing methodology), investment incentives (the FCC's counsel declining to concede that TELRIC rates have been falling), EELs, broadband, special access, etc. etc.

posted by @ 3:57 PM | General