NARUC Takes on Supreme Court Chevron Case and Joint Board Referral in Proposed Resolutions
Draft resolutions from state regulators charge the FCC the with federal overreach, one hammering home points in a resolution adopted during the National Association of Regulatory Utility Commissioners’ summer meeting and another weighing in on a case before the Supreme Court. The new drafts, including three on telecom, were released Thursday (http://xrl.us/bnxft5) and are likely to undergo much debate at NARUC’s fall conference, beginning Nov. 11 in Baltimore. They will have to pass through the organization’s subcommittees and committees and can be “substantially modified” before adoption as NARUC policy, the document cautioned.
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One proposed resolution, sponsored by Chairman Betty Ann Kane of the D.C. Public Service Commission, supports the petition of several cities in City of Arlington, TX, et al. v. FCC, which the Supreme Court decided to hear this October. NARUC, if this resolution passes in November, “repudiates the efforts by the FCC, as set forth in the Shot Clock Ruling” in November 2009, which set deadlines for state and local governments on the collocation and placement of wireless facilities, it said. It opposes the FCC’s attempt “to expand its jurisdictional authority and to pre-empt the regulatory authority of State and local governments without clear and specific enabling statutory language."
"I don’t expect it to be controversial among the commissioners,” Kane told us about her proposed resolution. The resolution focuses on the “certain bounds to what an agency should do” and will be critical to allowing NARUC to move forward with an amicus brief on the case, she said. NARUC decided to develop the resolution after the early October Supreme Court decision to hear the elements of the case dealing with the Chevron doctrine, which concern an agency’s ability to define its authority. The resolution is not asking NARUC to take a specific position on the FCC’s shot clock order, she said. The Supreme Court’s look at Chevron will have impact beyond just wireless tower siting and zoning issues, she added. Lawyers and analysts also believed the Supreme Court ruling may have significant implications, they said after the court decided to hear the case (CD Oct 12 p2).
Another resolution pushes for more FCC referral to the Federal-State Joint Board on Universal Service. NARUC may potentially resolve “that subsequent to the transmission of recommendations from the Universal Service Joint Board on the development of a cost model to be used to determine Connect America Fund Phase II support, and prior to the adoption of any such model, the Board of Directors requests that the FCC refer the proposed model to the Separations Joint Board,” in its second proposed telecom resolution, “to determine whether the adoption of the model would effectively result in jurisdictional cost allocation changes and, if so, to provide the recommendations of the Separations Joint Board.”
The regulators previously pressed this Joint Board referral issue in a summer resolution and in an October letter to FCC Chairman Julius Genachowski (CD Oct 9 p2) questioning the FCC’s high-cost support methodology. The Wireline Bureau sought comment on Connect America Phase II in June but “FCC and its Staff have not formally sought the input of State regulators or consulted on this matter with the Federal-State Joint Boards,” the proposed text notes. Referral to the board was a point of contention that nearly derailed one summer resolution (CD July 25 p8). Now Commissioner Randy Mitchell of the South Carolina Public Service Commission has raised the question of referral again.
The third proposed resolution asks the FCC to act on the “excessive rates” for prison calls. The price of “A fifteen minute telephone call from an inmate ranges from $10 to $17” in “most” states, the prison resolution said, saying these are typically collect calls whose burden falls on family and friends of the incarcerated. These calls are “critical” for prisoner rehabilitation and, eventually, to avoid recidivism, said the tentative resolution, sponsored by Commissioner Anne Boyle of the Nebraska Public Service Commission. Her resolution urges the FCC to support the Wright Petition now before it, which calls for prohibition of “unreasonable rates and charges.”