FCC Asks DC Circuit to Keep Tech Transition, BDS Tariff Order Cases in Abeyance

April 20 that were relevant to USTelecom's challenge to FCC 2014 and 2015 orders on industry tech transition rules and backup power duties, in an agency status report (in Pacer) Monday to the U.S. Court of Appeals for the D.C. Circuit in USTelecom v. FCC, No. 15-1414. It said one item was a rulemaking notice and request for comment on eliminating a "functional test" for implementing Communications Act Section 214 discontinuance requirements and on reversing a decision to apply Section 214 to wholesale services when their discontinuance causes carrier-customers to discontinue retail service to end users (see 1704200046). It said the other was an order completing a BDS rulemaking, which included a rule, when it becomes effective, to terminate an interim wholesale access rule challenged in the USTelecom case (see 1704200020). In light of those actions, the FCC said the court should continue to hold the case in abeyance until the agency completes its new rulemaking. The FCC also noted the April 20 BDS order in updating a separate case in which AT&T is challenging a 2016 BDS tariff investigation order. Although the recent BDS order adopted rules going forward, "it did not directly address the lawfulness of the tariffs at issue in this litigation, said a commission status report (in Pacer) on AT&T v. FCC, No. 16-1166. The agency said the parties "must now evaluate how best to proceed" and it asked the court to keep the case in abeyance for the time being.