Judges Question Case Against FCC Order Awarding AT&T Damages From 'Sham' CLECs

"traffic pumping"). In oral argument Friday, three judges of the U.S. Court of Appeals for the District of Columbia Circuit repeatedly questioned and even disputed assertions of All American Telephone, e-Pinnacle and ChaseCom. Judges Thomas Griffith and Patricia Millett suggested some petitioner arguments were foreclosed because they hadn't challenged the 2013 liability order finding they didn't provide telecom service pursuant to a lawful tariff. All American counsel Jonathan Canis said the FCC found in that order his clients weren't common carriers but in the damages order was treating them like common carriers: "Our argument is you can't have it both ways." Judge David Tatel responded, "Let's assume we don't agree with you," but he then pursued petitioners' argument the FCC improperly decided their state claims against AT&T in the U.S. District Court for the Southern District of New York. A district court judge stayed that case in 2009 and referred various issues to the FCC. Tatel said he read the 2015 damages order as saying there was no evidence to support petitioners' view they provided telecom service, without pre-empting their state claim. But Tatel also told FCC attorney Grey Pash that paragraph 13 of the order could be read to decide the state issue and "does cloud the decision a little bit." It "would have been easier for us" if that paragraph hadn't been included, Tatel said. The case is All American Telephone Co. v. FCC, No. 15-1354.