AT&T Counters Bandwidth.com Petition for DC Circuit to Rehear VoIP Symmetry Ruling
AT&T asked a court to deny a Bandwidth.com appeal of a panel ruling that vacated an FCC intercarrier-compensation decision siding with CLEC and VoIP partners (see 1611180063). The 3-0 panel overturned the decision "on a basic ground of administrative law:…
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the FCC failed to explain its decision adequately," said an AT&T response (in Pacer) to the U.S. Court of Appeals for the D.C. Circuit. The court had asked the telco to respond to a petition filed by Bandwidth.com and other intervenors to rehear AT&T v. FCC, No. 15-1059 (see 1701110054). "The panel committed no error -- much less one of 'exceptional importance.' The FCC itself does not seek rehearing or rehearing en banc, and for good reason: Intervenors' claim of error rests on a myopic reading of the arguments AT&T raised and the bases for the panel's decision," the big telco wrote. Bandwidth.com said the case "presents a question of exceptional importance" because the panel judges allegedly went beyond AT&T's arguments and decided the case based on their own research. Interpreting a VoIP symmetry rule, the FCC found CLEC/VoIP partners provide the "functional equivalent" of end-office switching and can thus collected associated access charges, which are higher than tandem-switching charges. But the panel vacated the order because the FCC's test can't distinguish between end-office and tandem switching functions, AT&T wrote, and that conclusion flowed directly from the telco's claim the agency didn't account for the unique functions of end-office switching. The panel thus didn't rule "on the basis of arguments not presented by AT&T," the telco said. It also said intervenors were "wrong to suggest that '[w]hether a court may go beyond the arguments presented by a petitioner' presents a 'question of exceptional importance' warranting rehearing." The question already was decided against intervenors, the carrier wrote, as one of the D.C. Circuit cases they cite (Carducci v. Regan, 1983) "makes clear that a panel 'is not precluded from supplementing the contentions of counsel through [its] own deliberation and research' ... Even if the panel had created the 'failure to distinguish tandem switching' theory out of whole cloth -- and it did not -- that would not justify further review."