D.C. Appellate Court Gives Green Light to Arguments in Special Access Litigation
CompTel and its allies have cleared another procedural hurdle in their battle to get the FCC moving on special access reform (CD Dec 8 p6), after the D.C. federal appeals court set a briefing schedule in the case. In an order dated and released late Monday, the U.S. Court of Appeals for the D.C. Circuit set deadlines for briefs in CompTel’s petition: CompTel and its co-petitioners will have until Jan. 13 to file their brief; the FCC’s response must be filed by Jan. 27, intervenors in the case have until Feb. 3, and the petitioners have until Feb. 10 to file a reply.
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The case was brought by CompTel, the Ad Hoc Telecommunications Users Committee, BT Americas, the Computer & Communications Industry Association, the Media Access Project, the New America Foundation, Public Knowledge, the Rural Cellular Association and tw telecom. It was filed last summer as the FCC was gathering data on the special access market. Harold Feld, Public Knowledge legal director, said he was cheered by the court’s order. “I think that the fact that the court has scheduled this for a merits panel shows that they are giving serious consideration to granting the mandamus request,” he told us Tuesday. “Mandamus is usually a long shot, but the recent scheduling orders show that the court regards this request as particularly meritorious and likely to be granted.”
The FCC has claimed that special access is a momentous and complex matter and that its two massive data requests are important steps to careful reform. The filing window for the second data request, on pricing in special access, closed earlier this month. An FCC spokesman on Tuesday declined comment.
Sam Feder, a telecom lawyer at Jenner & Block and a former FCC general counsel, said Monday’s order doesn’t necessarily predict a CLEC victory. “It tells me that the court doesn’t feel comfortable dismissing this out of hand -- they're taking this seriously. But at the same time they don’t think it’s so urgent that they had to set it for argument right away,” Feder said. Mandamus cases are hard to win because of court deference to expert agencies, but cases involving “unreasonable delay” -- such as this one -- are even tougher because “the court respects that an agency has the right to order its affairs,” Feder said. “It’s an extraordinary remedy,” he said of a writ of mandamus.
This case is slightly different, though, one telecom attorney whose clients may file to intervene in the case told us Tuesday. The FCC may be facing “a rough oral argument” here because the appellate court heard similar arguments nearly a decade ago, the lawyer said.
In 2003, then-CLEC AT&T filed its own mandamus petition on special access, claiming the FCC “had been duped” by incumbents. That litigation led the commission to open a new special access proceeding in 2005. That docket, 05-25, is still open and now is the centerpiece of the petitioners’ 2011 arguments. “You're always arguing uphill in a mandamus case,” the telecom lawyer told us, “but when you're arguing after an NPRM that was issued after earlier mandamus, it’s a little different."
Public Knowledge’s Feld said he agreed the FCC will have some explaining to do. “The court will take a dim view of the agency playing this kind of game,” he said. “That the last time the agency gave every appearance that it was pursuing the matter vigorously, only to let it languish again as soon as the court declined to issue the mandamus, is exactly the sort of thing that will persuade the court that nothing short of a mandamus order can force the agency to resolve the matter.”