FCC ‘Moved Goalposts,’ Qwest Claims in Phoenix Forbearance Appeal
The FCC “moved the goalposts back 20 yards” when it denied Qwest’s forbearance petition seeks permission to set its own rates and terms of service in Phoenix without permission from the FCC, the telco claimed in its appellate briefs. Qwest has “hemorrhaged market share to its rivals” and “easily meets” the standard for forbearance, the company claimed in its brief filed with the 10th U.S. Circuit Court of Appeals in Denver late Friday. It said the commission ignored longstanding tradition and continues to treat Qwest as if it were a monopoly.
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In denying Qwest’s Phoenix petition, the FCC followed the script of the four previous forbearance denials in which the commission was eventually overturned, Qwest said in a 152-page brief. “In each of those orders, as in this one, the FCC followed a similar pattern,” by waiting the full 15 months before denying the petition, by suggesting the petition “would have been granted had the commission applied the standards used in previous forbearance proceedings” but instead “changed those standards and faulted [Qwest] for relying on the previous one.”
Much is riding on Qwest’s appeal. After the company took the case to the 10th Circuit, other forbearance petitions by Qwest and Verizon for other geographic areas were pulled back. Most industry players are expected to intervene in the case (CD Aug 27 p6). In its denial, the commission said its market power analysis didn’t find sufficient facilities-based competition for retail mass market services in Phoenix (CD June 24 p1). The FCC’s reply to Qwest is due in the 10th Circuit Jan. 10.
The company claims that under the FCC’s standard of review, “Qwest -- and it alone -- is regulated as though it were still a monopolist,” while rivals Cox Communications, AT&T and Verizon Wireless “enjoy relative freedom from regulation.” The company also said that “the FCC’s continued application of monopoly-era rules has thus tilted the playing field sharply against Qwest.”