MBTAS: National Trends : Federal Judicial Proceedings

Arizona Telecommunications & Information Council (ATIC)

Multitenant Building Telecommunications Access Study

PREVIOUS CONTENTS NATIONAL TRENDS NEXT :
State Precedents and Trends-- State Legislatures

National Regulatory Precedents and Trends

Federal Judicial Proceedings

It would be gross understatement to say that the Telecommunications Act of 1996 is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction. That is most unfortunate for a piece of legislation that profoundly affects a crucial segment of the economy worth tens of billions of dollars. The 1996 Act can be read to grant (borrowing a phrase from incumbent GTE) "most promiscuous rights" to the FCC vis-à-vis the state commissions and to competing carriers vis-à-vis the incumbents - and the Commission has chosen in some instances to read it that way. But Congress is well aware that the ambiguities it chooses to produce in a statute will be resolved by the implementing agency.

-- Justice Antonin Scalia in a recent Supreme Court decision

The Federal Courts with their Constitutional privileges and obligations, remain a wild card, alternately advancing or forestalling progress towards open telecommunications access and a truly competitive marketplace. From 1984, with the Court mandated breakup of AT&T into the Regional Bell Operating Companies (RBOCs) and various other business enterprises, the U.S. Courts have played an activist role in the information technology, telecommunications, monopoly aggregation, intellectual property (IP), cyber liberties, and consumer protection arenas, often making policy either by their actions or refusal to act on specific issues and by their interpretation of jurisdictional issues. Just recently the U.S. Court of Appeals for the 9^th Circuit ruled that the Telecom Act does not require carriers to use up all state level remedies before seeking federal court review of interconnection decisions by states.

Summary of Selected Recent Federal Court Opinions

Federal Court Opinion Description and Outcome

RT Communications, Inc., et al. v. FCC, --- F.3d --- (D.C. Cir. 2000) [No. 98-9541, January 13, 2000] Petitioner challenged the FCC's decision to preempt a Wyoming statute that empowers certain incumbent local exchange carriers to preclude the provision of any competing local exchange service in the areas they serve. FCC Order affirmed.

Southwestern Bell Telephone Company, et al. v. FCC, 8th Cir. 1999), [No. 97-3389, December 27, 1999] Petitioners challenged an order in which the FCC clarified the responsibilities of incumbent local exchange carriers under Section 251(c)(3) to provide unbundled access to interoffice transport facilities on a shared basis. The court issued a Published Order on Remand vacating and remanding those portions and provisions of the FCC's Third Order on Reconsideration which required the network element "shared transport" to be provided by incumbent carriers to new entrants on an "unbundled basis" because the Commission was reconsidering which network elements satisfied the "necessary" and "impair" standards of the statute. The court affirmed all other portions and provisions of the Third Order, specifically including those portions and provisions which determine "shared transport" to be a "network element."

Gulf Power Co., et al. v. FCC, 187 F.3d 1324 (11th Cir. 1999) [No. 98-2403, September 9, 1999] Challenges to the constitutionality of the 1996 Telecommunications Act's amendments to the pole attachment provisions of the Communications Act. The 11th Circuit affirmed the district court's judgment in favor of the defendants by finding that this part of the 1996 Act is not "facially unconstitutional." Affirms mandatory access to utility poles and Rights-of-Way (ROW).

Texas Office of Public Utility Counsel, et al. v. FCC, 183 F.3d 393 (5th Cir. 1999) [No. 97-60421, July 30, 1999] Challenges to Commission's Universal Service Order. Petitions for review granted in part and denied in part. FCC order affirmed in part, reversed in part and remanded.

U S West, Inc. v. FCC, 177 F.3d 1057 (D.C. Cir. 1999) [No. 98-1468, June 8, 1999] Qwest's Section 271 Case concerning whether the BOCs had unlawfully "provided" interLATA service in violation of section 271 through their "teaming" arrangements with Qwest. Petitions for review are denied.

Southwestern Bell Telephone Co. v. FCC, 168 F.3d 1344 (D.C. Cir. 1999) [No. 93-1779, March 19, 1999] Petitions for review of FCC orders involving tariffs for expanded interconnection through physical collocation for special access and switched transport. (FCC 93-493, 8 FCC Rcd 8344; FCC 97-208, 12 FCC Rcd 18730). Petitions for review dismissed in part and denied in part.

AT&T Corp. v. Iowa Utilities Board, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999) [No. 97-826, Jan. 25, 1999] Supreme Court review of court of appeals' decisions in Iowa Utilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997), and People of the State of California v. FCC, 124 F.3d 934 (8th Cir. 1997) involving FCC implementation of the local competition provisions of the Telecommunications Act of 1996. Reversing in part, affirming in part, and remanding in part. Opinion for the Court by Justice Scalia. Separate opinions concurring in part and dissenting in part by Justices Souter, Thomas and Breyer.

SBC Communications, Inc. v. FCC, 154 F.3d 226 (5th Cir. 1998) [No. 98-10140, Sept. 4, 1998] Appeal by FCC and United States from determination of U.S. District Court for the Northern District of Texas (981 F.Supp. 996) that §§ 271-75 of the Telecommunications Act of 1996, 47 U.S.C. §§ 271-75, are an unconstitutional bill of attainder. Finding the provisions at issue to be nonpunitive in character, the Fifth Circuit held the provisions not to be a bill of attainder as that term has been defined by the Supreme Court. The court of appeals also held that the provisions are consistent with the constitutional requirements of separation of powers, equal protection, and free speech. The judgment of the district court was reversed.

Southwestern Bell Telephone Co. v. FCC, 153 F.3d 597 (8th Cir. 1998) [No. 97-3389, Aug. 10, 1998] Petitions for review of FCC designation of shared transport as a network element subject to unbundling under 47 U.S.C. 251(c)(3). [FCC 97-295, 12 FCC Rcd 12460]. Petitions for review denied.

SBC Communications, Inc. v. FCC and United States, 981 F.Supp. 996 (N.D.Tx. 1997) [Civ.Action No. 7:97-CV-163-X, Dec. 31, 1997] Constitutional challenge to certain provisions of the Telecommunications Act of 1996, 47 U.S.C. 271-275. Statutory provisions held to constitute an unconstitutional bill of attainder.

Bell Atlantic Telephone Cos., et al. v. FCC, 131 F.3d 1044 (D.C.Cir. 1997) [No. 97-1432, Dec. 23, 1997] Petition for review of FCC order concluding that under 47 U.S.C. 272 a Bell Operating Company may provide any services or facilities to its long distance affiliate that it is otherwise authorized to provide so long as it makes such services available to all carriers in a nondiscriminatory manner and fairly allocates their costs. [FCC 97-222, 12 FCC Rcd 8653] FCC order affirmed.

Iowa Utilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997), cert. granted, Nos. 97-826, 97-829, 97-830, 97-831, 97-1075, 97-1087, and 97-1099, 97-1141 (U.S. Jan. 26, 1998) [Nos. 96-3321, et al.,July 18, 1997] Petitions for review of First Report and Order, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, 11 FCC Rcd 15499 (1996). FCC order affirmed in part and vacated in part.

Competitive Telecommunications Ass'n v. FCC, 117 F.3d 1068 (8th Cir. 1997) [No. 96-3604, June 27, 1997] Petitions for review of First Report and Order, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, 11 FCC Rcd 15499 (1996). FCC order affirmed in principal part.

Time Warner Entertainment Co., L.P. v. FCC, 105 F.3d 723 (D.C.Cir. 1997) [No. 93-5349, Feb. 7, 1997] Appeal of district court ruling involving challenges to the 1992 Cable Act. Denial of petitions for rehearing in banc. See original decisions at Daniels Cablevision, Inc. v. United States, 835 F.Supp. 1 (D.D.C. 1993), aff'd in part and rev'd in part, Time Warner Entertainment Co., L.P. v. FCC, 93 F.3d 957 (D.C.Cir. 1996)

-- (Source: FCC's Office of General Counsel)

Please also see the more extensive guide to Congressional, FCC, and Federal Court resources on the Internet appearing later in this study in Appendix 1 - National Organizational Resources.

Multitenant Building Telecommunications Access Study

PREVIOUS CONTENTS NATIONAL TRENDS NEXT :
State Precedents and Trends-- State Legislatures

Arizona Telecommunications & Information Council (ATIC)
Multitenant Building Telecommunications Access Study
PREVIOUS	CONTENTS	NATIONAL TRENDS	NEXT : State Precedents and Trends-- State Legislatures

Summary of Selected Recent Federal Court Opinions
Federal Court Opinion	Description and Outcome
RT Communications, Inc., et al. v. FCC, --- F.3d --- (D.C. Cir. 2000) [No. 98-9541, January 13, 2000]	Petitioner challenged the FCC's decision to preempt a Wyoming statute that empowers certain incumbent local exchange carriers to preclude the provision of any competing local exchange service in the areas they serve. FCC Order affirmed.
Southwestern Bell Telephone Company, et al. v. FCC, 8th Cir. 1999), [No. 97-3389, December 27, 1999]	Petitioners challenged an order in which the FCC clarified the responsibilities of incumbent local exchange carriers under Section 251(c)(3) to provide unbundled access to interoffice transport facilities on a shared basis. The court issued a Published Order on Remand vacating and remanding those portions and provisions of the FCC's Third Order on Reconsideration which required the network element "shared transport" to be provided by incumbent carriers to new entrants on an "unbundled basis" because the Commission was reconsidering which network elements satisfied the "necessary" and "impair" standards of the statute. The court affirmed all other portions and provisions of the Third Order, specifically including those portions and provisions which determine "shared transport" to be a "network element."
Gulf Power Co., et al. v. FCC, 187 F.3d 1324 (11th Cir. 1999) [No. 98-2403, September 9, 1999]	Challenges to the constitutionality of the 1996 Telecommunications Act's amendments to the pole attachment provisions of the Communications Act. The 11th Circuit affirmed the district court's judgment in favor of the defendants by finding that this part of the 1996 Act is not "facially unconstitutional." Affirms mandatory access to utility poles and Rights-of-Way (ROW).
Texas Office of Public Utility Counsel, et al. v. FCC, 183 F.3d 393 (5th Cir. 1999) [No. 97-60421, July 30, 1999]	Challenges to Commission's Universal Service Order. Petitions for review granted in part and denied in part. FCC order affirmed in part, reversed in part and remanded.
U S West, Inc. v. FCC, 177 F.3d 1057 (D.C. Cir. 1999) [No. 98-1468, June 8, 1999]	Qwest's Section 271 Case concerning whether the BOCs had unlawfully "provided" interLATA service in violation of section 271 through their "teaming" arrangements with Qwest. Petitions for review are denied.
Southwestern Bell Telephone Co. v. FCC, 168 F.3d 1344 (D.C. Cir. 1999) [No. 93-1779, March 19, 1999]	Petitions for review of FCC orders involving tariffs for expanded interconnection through physical collocation for special access and switched transport. (FCC 93-493, 8 FCC Rcd 8344; FCC 97-208, 12 FCC Rcd 18730). Petitions for review dismissed in part and denied in part.
AT&T Corp. v. Iowa Utilities Board, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999) [No. 97-826, Jan. 25, 1999]	Supreme Court review of court of appeals' decisions in Iowa Utilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997), and People of the State of California v. FCC, 124 F.3d 934 (8th Cir. 1997) involving FCC implementation of the local competition provisions of the Telecommunications Act of 1996. Reversing in part, affirming in part, and remanding in part. Opinion for the Court by Justice Scalia. Separate opinions concurring in part and dissenting in part by Justices Souter, Thomas and Breyer.
SBC Communications, Inc. v. FCC, 154 F.3d 226 (5th Cir. 1998) [No. 98-10140, Sept. 4, 1998]	Appeal by FCC and United States from determination of U.S. District Court for the Northern District of Texas (981 F.Supp. 996) that §§ 271-75 of the Telecommunications Act of 1996, 47 U.S.C. §§ 271-75, are an unconstitutional bill of attainder. Finding the provisions at issue to be nonpunitive in character, the Fifth Circuit held the provisions not to be a bill of attainder as that term has been defined by the Supreme Court. The court of appeals also held that the provisions are consistent with the constitutional requirements of separation of powers, equal protection, and free speech. The judgment of the district court was reversed.
Southwestern Bell Telephone Co. v. FCC, 153 F.3d 597 (8th Cir. 1998) [No. 97-3389, Aug. 10, 1998]	Petitions for review of FCC designation of shared transport as a network element subject to unbundling under 47 U.S.C. 251(c)(3). [FCC 97-295, 12 FCC Rcd 12460]. Petitions for review denied.
SBC Communications, Inc. v. FCC and United States, 981 F.Supp. 996 (N.D.Tx. 1997) [Civ.Action No. 7:97-CV-163-X, Dec. 31, 1997]	Constitutional challenge to certain provisions of the Telecommunications Act of 1996, 47 U.S.C. 271-275. Statutory provisions held to constitute an unconstitutional bill of attainder.
Bell Atlantic Telephone Cos., et al. v. FCC, 131 F.3d 1044 (D.C.Cir. 1997) [No. 97-1432, Dec. 23, 1997]	Petition for review of FCC order concluding that under 47 U.S.C. 272 a Bell Operating Company may provide any services or facilities to its long distance affiliate that it is otherwise authorized to provide so long as it makes such services available to all carriers in a nondiscriminatory manner and fairly allocates their costs. [FCC 97-222, 12 FCC Rcd 8653] FCC order affirmed.
Iowa Utilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997), cert. granted, Nos. 97-826, 97-829, 97-830, 97-831, 97-1075, 97-1087, and 97-1099, 97-1141 (U.S. Jan. 26, 1998) [Nos. 96-3321, et al.,July 18, 1997]	Petitions for review of First Report and Order, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, 11 FCC Rcd 15499 (1996). FCC order affirmed in part and vacated in part.
Competitive Telecommunications Ass'n v. FCC, 117 F.3d 1068 (8th Cir. 1997) [No. 96-3604, June 27, 1997]	Petitions for review of First Report and Order, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, 11 FCC Rcd 15499 (1996). FCC order affirmed in principal part.
Time Warner Entertainment Co., L.P. v. FCC, 105 F.3d 723 (D.C.Cir. 1997) [No. 93-5349, Feb. 7, 1997]	Appeal of district court ruling involving challenges to the 1992 Cable Act. Denial of petitions for rehearing in banc. See original decisions at Daniels Cablevision, Inc. v. United States, 835 F.Supp. 1 (D.D.C. 1993), aff'd in part and rev'd in part, Time Warner Entertainment Co., L.P. v. FCC, 93 F.3d 957 (D.C.Cir. 1996)
-- (Source: FCC's Office of General Counsel)