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In re COMPTEL, No. 11-1262 (D.C. Cir.)

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Released: October 6, 2011
USCA Case #11-1262 Document #1333787 Filed: 10/06/2011 Page 1 of 115
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT








)
In re COMPTEL, et al.,
) No.
11-1262








)
Petitioners.
)

OPPOSITION OF FEDERAL COMMUNICATIONS COMMISSION

TO PETITION FOR WRIT OF MANDAMUS

A group of telecommunications carriers and their trade associations, along
with several groups representing users of telecommunications services, have
jointly filed a petition for writ of mandamus. Petitioners ask the Court to direct the
Federal Communications Commission ("FCC" or "Commission") to complete a
rulemaking regarding "special access" telecommunications services and to issue
new rules within six months, even though the Commission is still in the process of
gathering data it needs to assess whether its special access rules should be revised.
Petitioners have failed to carry their heavy burden to justify the
extraordinary remedy of mandamus. Contrary to their claim, the FCC has not
unreasonably delayed completion of its special access rulemaking. That
proceeding involves intensely fact-bound issues. Notwithstanding petitioners'
undeveloped assertions to this Court, those issues cannot adequately be addressed
until the Commission itself compiles an evidentiary record that is sufficient to
evaluate current conditions in the special access market. The agency has diligently
sought to collect the data it needs.

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In particular, in the past two years, the Commission has: (1) issued a
November 2009 request for comment on the appropriate analytical framework for
assessing the effectiveness of the current special access rules; (2) conducted a
workshop in July 2010 regarding the analytical framework and the sort of data
required to evaluate the special access market; (3) issued an October 2010 public
notice requesting the submission of special access data; and (4) released another
public notice in September 2011 requesting additional data concerning the rates,
terms, and conditions for special access services. While the agency has made
progress toward building a sufficient evidentiary record, its efforts have been
impeded by the failure of some parties to produce information clearly documenting
their claims that special access rates are unreasonable.
Particularly where (as here) there is no statutory deadline for agency action,
the Commission has broad discretion to order its proceedings and to allocate its
scarce resources by prioritizing other pressing policy objectives that, in the
agency's considered judgment, merit more immediate attention. The FCC has
reasonably exercised that discretion by, for example, devoting substantial resources
to reforming its universal service and intercarrier compensation programs, even as
it continues to examine its special access rules.
In any event, even if petitioners could demonstrate unreasonable delay in
this case and they cannot they are not entitled to the extraordinary remedy of

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mandamus for a separate and independent reason. Petitioners have other adequate
alternative remedies under the Communications Act, including review of newly
filed special access tariffs under 47 U.S.C. 204, recovery of damages in federal
district court under 47 U.S.C. 206 and 207, and the administrative complaint
process established by 47 U.S.C. 208.
The petition for mandamus should be denied.

BACKGROUND

A. Special Access Services

To complete the transmission of an interstate telephone call, a
telecommunications carrier "must have `access' to the local networks at both the
originating and receiving end of the call." WorldCom, Inc. v. FCC, 238 F.3d 449,
453 (D.C. Cir. 2001). Part 69 of the FCC's rules establishes two basic categories
of access services: switched access and special access. 47 C.F.R. Part 69. Unlike
switched access, which uses local exchange switches to route originating and
terminating interstate telecommunications, special access employs dedicated
facilities that run between the end user and the carrier's network or between two
discrete end user locations. Access Charge Reform, 14 FCC Rcd 14221, 14226 8
(1999) ("Pricing Flexibility Order"), petitions for review denied, WorldCom, 238
F.3d 449. "Most users of special access services are companies with high call
volumes." WorldCom, 238 F.3d at 453. Among other things, "[s]pecial access

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circuits connect wireless towers to the core network" and sometimes provide "the
critical broadband link . . . between a small town and the nearest Internet point of
presence." FCC, Connecting America: The National Broadband Plan 143 (2010),
available at http://download.broadband.gov/plan/national-broadband-plan.pdf.
For many years, incumbent local exchange carriers ("ILECs") were the sole
providers of access services. In the 1980s, however, competitive access providers
("CAPs") began to challenge the ILEC monopolies by offering limited end-to-end
special access services over their own transport facilities. See Expanded
Interconnection with Local Telephone Company Facilities, 7 FCC Rcd 7369, 7373
4 (1992), on recon., 8 FCC Rcd 127 (1993), rev'd in part and remanded in part,
Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441 (D.C. Cir. 1994). Under a 1996
amendment to the Communications Act, CAPS are entitled to install (or
"collocate") their equipment at ILEC facilities. 47 U.S.C. 251(c)(6).

B. Federal Price Cap Regulation Of Access Services

Historically, ILECs and other telecommunications carriers have been subject
to rate-of-return regulation, which "is based directly on cost." National Rural
Telecom Ass'n v. FCC, 988 F.2d 174, 177 (D.C. Cir. 1993); see also WorldCom,
238 F.3d at 453. In October 1990, the FCC adopted a new framework for
regulating the largest ILECs' rates an incentive-based system that imposes
"caps" on the aggregate prices that those carriers charge for certain services in a

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given area. WorldCom, 238 F.3d at 453 (citing 47 C.F.R. 61.41-61.49). "Price
cap regulation is intended to provide better incentives to the carriers than rate of
return regulation, because the carriers have an opportunity to earn greater profits if
they succeed in reducing costs and becoming more efficient." Bell Atlantic Tel.
Cos. v. FCC, 79 F.3d 1195, 1198 (D.C. Cir. 1996).
For purposes of setting price caps, the Commission grouped different access
services into "baskets." See WorldCom, 238 F.3d at 453. "For each basket, the
Commission established a maximum price, called the price cap index." Bell
Atlantic, 79 F.3d at 1198. Under the price cap system, "companies are relatively
free to set their own prices so long as they remain below the cap." WorldCom, 238
F.3d at 454.
Carriers that are classified as "dominant" carriers are subject to price cap
regulation. These price cap LECs must comply with tariff requirements,
publishing rate changes before they go into effect. WorldCom, 238 F.3d at 454
(citing 47 U.S.C. 203(a), 204(a)).

C. The Pricing Flexibility Order


In August 1999, the Commission adopted rules under which "price cap
LECs would receive pricing flexibility in the provision of interstate access services
as competition for those services develops." Pricing Flexibility Order, 14 FCC
Rcd at 14225 2. Those rules "granted immediate pricing flexibility [to price cap

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LECs] for some services." WorldCom, 238 F.3d at 454. They also provided for
future pricing flexibility to be implemented in two phases. "In Phase I, LECs may
offer contract tariffs and volume and term discounts, while remaining subject to
some price cap rules and tariff requirements." Id. at 455. "In Phase II, LECs are
given greater freedom to raise and lower rates outside of price cap regulation." Id.
at 456.
To obtain pricing flexibility under Phase I or Phase II, a price cap LEC must
file a petition demonstrating that certain competitive "triggers" have been met
within a particular Metropolitan Statistical Area ("MSA"). The triggers are based
on the extent to which competitive carriers have collocated their facilities on ILEC
premises within the MSA. "The triggers measure market competition based upon
investments in infrastructure by potential competitors. . . . [T]he more relief
sought, the higher the trigger is set that is, a greater level of investment by
competitors is required." WorldCom, 238 F.3d at 455.
"In order to obtain Phase I relief" for special access services, an ILEC "must
show collocation in fifteen percent of wire centers within the MSA in which relief
is sought, or in wire centers accounting for at least thirty percent of revenues for
services in question." WorldCom, 238 F.3d at 455-56. To qualify for Phase II
relief, an ILEC must demonstrate more extensive deployment of competitive
facilities: "collocation in fifty percent of wire centers within the MSA in which

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relief is sought or in wire centers accounting for at least sixty-five percent of
revenues for services in question." Id. at 456. In addition, before an ILEC can
obtain pricing flexibility under either Phase I or Phase II, "at least one competitor
must rely on transport facilities provided by a non-incumbent LEC in each wire
center relied on in the applicant LEC's petition." Id.
The FCC acknowledged that its pricing flexibility rules could potentially
allow for "Phase II relief before the manifestation of actual competitive
alternatives for interstate access service customers." WorldCom, 238 F.3d at 456.
Nonetheless, the Commission concluded that "the costs of delaying regulatory
relief outweigh the potential costs of granting it before [competitive carriers] have
a competitive alternative for each and every end user." Id. (quoting Pricing
Flexibility Order, 14 FCC Rcd at 14297 144). The Commission recognized that
its selection of pricing flexibility triggers was "not an exact science," but rather a
policy determination "based on our agency expertise, our interpretation of the
record before us in this proceeding, and our desire to provide a bright-line rule to
guide the industry." Pricing Flexibility Order, 14 FCC Rcd at 14276 96.
On review, this Court rejected various challenges to the FCC's pricing
flexibility rules. WorldCom, 238 F.3d at 457-64. It held that the Commission
acted reasonably in using collocation as a proxy for competition. Id. at 458-60.

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The Court also held that the agency based its collocation triggers on reasonable
predictive judgments that were entitled to deference. Id. at 461-62.

D. The CALLS Plan

In May 2000, the Commission adopted "an integrated interstate access
reform and universal service proposal" made by the Coalition for Affordable Local
and Long Distance Service ("CALLS"), a group of local and long-distance
telecommunications carriers. Access Charge Reform, 15 FCC Rcd 12962, 12964
1 (2000) ("CALLS Order"), aff'd in part and remanded in part, Texas Office of
Public Utility Counsel v. FCC, 265 F.3d 313 (5th Cir. 2001). The CALLS plan
was a five-year transitional mechanism "designed to further accelerate the
development of competition in the local and long-distance telecommunications
markets." Id. at 12965 4. Among other things, the CALLS plan created "a
separate special access basket" for purposes of price cap regulation. Id. at 13033
172.
The CALLS Order gave price cap LECs a choice. They could either
"subscribe to the CALLS [plan] for its full five-year term" or "submit a cost study
based on forward-looking economic costs." CALLS Order, 15 FCC Rcd at 12984
59. "All price cap carriers opted for the CALLS plan." Special Access Rates for
Price Cap Local Exchange Carriers, 20 FCC Rcd 1994, 2000 14 (2005)
("Special Access NPRM").

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Although the CALLS plan "was intended to run until June 30, 2005," it
remains in place and will continue in effect "until the Commission adopts a
subsequent plan" to replace CALLS. Special Access NPRM, 20 FCC Rcd at 1995
2.

E. AT&T's Petition For Rulemaking

In October 2002, AT&T filed a petition for rulemaking "essentially
requesting that the Commission revoke the pricing flexibility rules and revisit the
CALLS plan as it pertains to the rates that price cap LECs . . . charge for special
access services." Special Access NPRM, 20 FCC Rcd at 2002 19.1 AT&T
contended that "the predictive judgment at the core of the Pricing Flexibility Order
has not been confirmed by marketplace developments," and that ILECs were
charging unreasonably high rates for special access services. Id. at 2003 19. In
addition to seeking rule changes, AT&T requested interim relief while the
rulemaking was pending. It asked the Commission to impose a moratorium on
pricing flexibility and to reduce all special access charges to levels that would
produce an 11.25 percent rate of return. Id.
1 At that time, AT&T was a purchaser of special access services and a competitor
to the ILECs. In 2005, AT&T merged with SBC, an ILEC. As currently
constituted, AT&T is both an ILEC and an interexchange carrier, and thus is both a
provider and a purchaser of special access services.

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The Commission's staff invited comment on AT&T's rulemaking petition.2
Price cap LECs opposed AT&T's petition and disputed its claims. In particular,
they asserted that "there is robust competition in the special access market," and
that the existing special access rates were "reasonable and therefore lawful."
Special Access NPRM, 20 FCC Rcd at 2003 20.
In November 2003, AT&T filed with this Court a petition for writ of
mandamus. It asked the Court to direct the Commission to act on AT&T's
rulemaking petition and to grant the interim relief sought. Special Access NPRM,
20 FCC Rcd at 2003 21. In October 2004, the Court held the matter in abeyance
and directed the Commission to provide status reports on December 1, 2004 and
February 1, 2005. Id. at 2003-04 21.

F. The

Special Access NPRM


On January 31, 2005, the Commission released a notice of proposed
rulemaking "to seek comment on the interstate special access regime that we
should put in place post-CALLS." Special Access NPRM, 20 FCC Rcd at 2004
22. The Commission specifically requested comment "on whether, as part of that
regime, we should maintain, modify, or repeal the Commission's pricing flexibility
rules." Id. Insofar as AT&T's petition requested a new special access rulemaking,
2 Wireline Competition Bureau Seeks Comment on AT&T's Petition for
Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for
Interstate Special Access Services
, 17 FCC Rcd 21530 (2002).

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the Commission granted the petition. Id. at 2042 152. The agency also
incorporated into this proceeding "the record already compiled in response to"
AT&T's petition. Id. at 1997 5.
At the same time it commenced the special access rulemaking, the FCC
denied AT&T's request for interim relief. It found that "the evidence submitted by
AT&T in its petition" was not "sufficient to justify the requested relief at this
time." Special Access NPRM, 20 FCC Rcd at 2035 129.3
Shortly after the Commission notified the Court of the release of the Special
Access NPRM, the Court dismissed AT&T's mandamus petition as moot. In re
AT&T Corp., 2005 WL 283198 (D.C. Cir. Feb. 4, 2005).

G. Subsequent

Developments

In July 2007, the Commission invited interested parties to update the record
in the special access rulemaking in light of a number of recent developments in the
industry, including several "significant mergers and other industry consolidations,"
"the continued expansion of intermodal competition in the market for
telecommunications services," and "the release by GAO [the Government
Accountability Office] of a report summarizing its review of certain aspects of the
3 In the Special Access NPRM, the Commission sought comment "on what interim
relief, if any, is necessary to ensure" that "special access rates remain reasonable"
while the Commission considered "what regulatory regime will follow the CALLS
plan." 20 FCC Rcd at 2036 131 (emphasis added). Specifically, the Commission
sought comment on a proposal to make interim rate adjustments to account for
increased productivity in the provision of special access services. Id.

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market for special access services." Parties Asked to Refresh Record in the Special
Access Notice of Proposed Rulemaking, 22 FCC Rcd 13352, 13352-53 (2007).
While the special access rulemaking was pending, the FCC also addressed
special access issues in several other proceedings. In two orders issued in October
2007, the agency granted petitions filed by AT&T, Embarq, and Frontier under 47
U.S.C. 160 seeking FCC forbearance from enforcement of dominant carrier and
tariff filing requirements with respect to enterprise broadband special access
services (i.e., high-speed telecommunications services for businesses). Petition of
the Embarq Local Operating Companies for Forbearance, 22 FCC Rcd 19478
(2007); Petition of AT&T Inc. for Forbearance, 22 FCC Rcd 18705 (2007). This
Court affirmed those forbearance orders. Ad Hoc Telecomm. Users Comm. v.
FCC, 572 F.3d 903 (D.C. Cir. 2009). In August 2008, the Commission granted
Qwest's petition for similar relief from regulation of enterprise broadband special
access. Qwest Petition for Forbearance, 23 FCC Rcd 12260 (2008). The Court
dismissed a petition for review of that forbearance grant. Ad Hoc Telecomm. Users
Comm. v. FCC, 2009 WL 2461594 (D.C. Cir. Aug. 7, 2009) (granting motion for
voluntary dismissal).
During the summer of 2009, in the wake of the 2008 Presidential election,
the Senate confirmed a new Chairman of the 5-member Commission and two new
Commissioners.

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In November 2009, the Commission sought comment on the appropriate
analytical framework for examining the issues that the Special Access NPRM
raised. Parties Asked to Comment on Analytical Framework Necessary to Resolve
Issues in the Special Access NPRM, 24 FCC Rcd 13638 (2009) ("Analytical
Framework Public Notice").
In July 2010, the FCC's Wireline Competition Bureau held a staff workshop
to gather further input from interested parties on the analytical framework the
Commission should use and the data it should collect to evaluate whether the
current special access rules are working as intended. Wireline Competition Bureau
Announces July 19, 2010 Staff Workshop to Discuss the Analytical Framework for
Assessing the Effectiveness of the Existing Special Access Rules, 25 FCC Rcd 8458
(2010) ("Staff Workshop Public Notice").
In October 2010, the Wireline Competition Bureau issued a public notice
inviting the public to submit data to assist the Commission in evaluating the issues
that the Special Access NPRM raised. Data Requested in Special Access NPRM,
25 FCC Rcd 15146 (2010) ("First Data Request Public Notice"). Explaining that
data "would need to be reviewed" before the Commission could address the issues
raised by the proceeding, id. at 15146, the Bureau asked that the requested data be
submitted on or before January 27, 2011. Id. at 15147. It also noted that while it

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continued to develop its analytical framework, it would "ask for additional
voluntary submissions of data in a second public notice." Id.
On September 19, 2011, the Bureau issued its second public notice
requesting the submission of special access data. Competition Data Requested in
Special Access NPRM, DA 11-1576 (released Sept. 19, 2011) ("Second Data
Request Public Notice") (Attachment A). The Bureau asked for detailed data on
special access prices, revenues, and expenditures, as well as the nature of terms
and conditions for special access services. It requested that the data be submitted
to the Commission by December 5, 2011.
While the Commission has made progress in its data-gathering efforts, the
vast majority of the service provider members of the principal petitioner here (the
trade association COMPTEL) did not provide any data in response to the agency's
October 2010 request.4
4 The member list on COMPTEL's website includes approximately 90 "service
provider" members. See http://www.comptel.org/memberlist.asp?contentid=2109.
According to the Commission's records, only seven of those member carriers
360networks, Cbeyond, RCN, Sprint, TDS Metrocom, TelePacific
Communications, and tw telecom provided special access data in response to the
agency's October 2010 request.

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ARGUMENT

PETITIONERS HAVE NOT CARRIED THEIR BURDEN OF SHOWING

THAT THEY HAVE A CLEAR AND INDISPUTABLE RIGHT

TO THE EXTRAORDINARY REMEDY OF MANDAMUS

"Mandamus is a `drastic' remedy available only in `extraordinary
situations.'" Oglala Sioux Tribe of Pine Ridge Indian Reservation v. U.S. Army
Corps of Eng'rs, 570 F.3d 327, 333 (D.C. Cir. 2009) (quoting Kerr v. U.S. Dist.
Court for N. Dist. of Cal., 426 U.S. 394, 401 (1976)). "Mandamus is available
only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty
to act; and (3) there is no other adequate remedy available to plaintiff." Fornaro v.
James, 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d
781, 784 (D.C. Cir. 2002)). "The party seeking mandamus has the burden of
showing that its right to issuance of the writ is clear and indisputable." Power, 292
F.3d at 784 (internal quotation marks omitted); see also Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Because petitioners have
failed to carry that heavy burden here, the petition should be denied.

I.

The FCC Has Reasonably And Responsibly Sought To Compile
A Sufficient Evidentiary Record For Purposes Of Resolving The
Complex Question Whether Its Current Special Access Rules
Ensure Just And Reasonable Rates.


Petitioners contend that the Court should issue a writ of mandamus because
the FCC has unreasonably delayed action in its pending special access proceeding.
Given the highly fact-bound nature of the issues raised by that proceeding

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including the pricing issues that must be resolved based on a full evidentiary record
there has been no unreasonable delay, much less an "egregious" delay. In re
Monroe Commc'ns Corp., 840 F.2d 942, 945 (D.C. Cir. 1988) (the "extraordinary
remedy" of mandamus is "warranted only when agency delay is egregious").
In assessing whether an "agency's delay is so egregious as to warrant
mandamus," the Court has declared that "the time agencies take to make decisions
must be governed by a `rule of reason.'" Telecomm. Research & Action Ctr. v.
FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984) ("TRAC"). This "rule of reason" cannot
be applied "in the abstract, by reference to some number of months or years
beyond which agency inaction is presumed to be unlawful." Mashpee Wampanoag
Tribal Council v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). "Resolution of a
claim of unreasonable delay is ordinarily a complicated and nuanced task requiring
consideration of the particular facts and circumstances before the court." Id. at
1100. Thus, before determining whether an agency's delay is unreasonable, the
Court must consider (among other things) "the complexity of the task at hand" and
"the resources available to the agency." Id. at 1102. These factors weigh
decisively against a finding of unreasonable delay in this case.
As a threshold matter, petitioners are wrong when they claim that "[t]here
has been no resolution" of AT&T's 2002 petition for rulemaking. Petition at 21;
see also id. (alleging a "near-decade of inaction"). To the contrary, the FCC acted

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on that petition when it initiated the special access rulemaking proceeding and
denied AT&T's request for interim relief in 2005. See Background, Section F,
supra. In the Special Access NPRM, the Commission explicitly stated that
AT&T's petition for rulemaking was "GRANTED to the extent specified herein
and otherwise [was] DENIED." Special Access NPRM, 20 FCC Rcd at 2042
152. This Court recognized that the agency had taken action when it dismissed
AT&T's mandamus petition as moot in 2005. See id.5
In any event, petitioners cannot show that the FCC unreasonably delayed
action in this case. Their claim of unreasonable delay rests on a fundamentally
flawed premise. Petitioners assert that the FCC "has known for nearly a decade
that its predictions in the Pricing Flexibility Order were wrong." Petition at 14.
To the contrary, the FCC has yet to draw any firm conclusions about the accuracy
of its predictions regarding special access. Instead, it is in the process of collecting
and analyzing data to ascertain how the pricing flexibility rules have affected the
special access market.
5 Similarly, there is no basis for petitioners' suggestion that the FCC's
representations to this Court in the AT&T mandamus litigation were misleading.
See Petition at 11, 21. The agency never represented to the Court that a special
access rulemaking would be completed within a specified timeframe. Rather, the
Commission informed the Court in July 2004 that it expected to act on AT&T's
rulemaking petition "in the near future" (In re AT&T Corp., D.C. Cir. No. 03-1397,
FCC Br. at 3), and it did so by issuing its Special Access NPRM in January 2005.

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Petitioners maintain that a 2006 report by the Government Accountability
Office "confirmed" that the predictions on which the FCC based its pricing
flexibility rules were wrong. Petition at 14. But the GAO did not reach any such
definitive conclusion.6 Instead, the GAO Report confirms the FCC's need for
additional data as it considers reform of its special access rules. "[I]n order to
better meet its regulatory responsibilities," the GAO explained, the FCC "needs a
more accurate measure of effective competition and needs to collect more
meaningful data." GAO Report at 15. The Commission is now taking the very
action that the GAO recommended.
Petitioners maintain that consumers are paying unreasonably high prices for
special access under the pricing flexibility rules. Petition at 15-16. But the ILECs
hotly contest petitioners' basic premise that special access rates have increased.
Indeed, they contend that special access rates have steadily declined since the
introduction of pricing flexibility.7
6 The GAO merely noted that its analysis of the limited data available at the time
"suggests that [the] FCC's predictive judgment that MSAs with pricing
flexibility have sufficient competition may not have been borne out." GAO,
Telecommunications: FCC Needs to Improve Its Ability to Monitor and Determine
the Extent of Competition in Dedicated Access Services
, GAO-07-80, at 42 (Nov.
2006) (emphasis added) ("GAO Report"), available at
www.gao.gov/new.items/d0780.pdf.
7 See, e.g., Reply Comments of AT&T Inc., WC Docket No. 05-25, Feb. 24, 2010,
at 4 ("Over the decade that [the pricing flexibility] rules have been in place, the
prices that special access customers actually pay have decreased dramatically,

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Even one of the reports on which petitioners rely (Petition at 14) notes that
the available special access pricing data "do not support any clear conclusions
about price trends. Some data suggest rising prices, while other data suggest
declining prices. Data quality could well be the reason for these ambiguities."
Peter Bluhm & Robert Loube, National Regulatory Research Institute, Competitive
Issues in Special Access Markets 67 (Jan. 21, 2009).

Lacking sufficient data to resolve this fundamental dispute, the Commission
appropriately recognized that it should make no decisions about revising its special
access rules before it has compiled and analyzed an adequate evidentiary record.
In the last two years, since Chairman Genachowski's arrival at the agency, the
Commission has taken a number of steps to build that record.
In November 2009, the agency sought comment on the appropriate
analytical framework for examining the issues raised by the special access
rulemaking. Analytical Framework Public Notice, 24 FCC Rcd at 13638-44. In
output has risen sharply, both incumbents and their competitors have invested
billions in new facilities," and "innovation has increased"); Reply Comments of
Verizon and Verizon Wireless, WC Docket No. 05-25, Feb. 24, 2010, at 6 ("the
prices customers pay for special access services have followed an overall
downward trend"); Declaration of Michael D. Topper on behalf of Verizon and
Verizon Wireless, WC Docket No. 05-25, Jan. 19, 2010, at 37 ("Evidence
presented in this proceeding indicates that special access prices have been steadily
declining since pricing flexibility was introduced," and that the quantity of special
access services "has increased significantly over time."); Declaration of Dennis W.
Carlton and Hal S. Sider on behalf of AT&T Inc., WC Docket No. 05-25, Jan. 19,
2010, at 30 (citing evidence that "average special access prices have fallen
substantially in areas where full Phase II pricing flexibility has been granted").

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July 2010, Commission staff held a workshop to obtain further input from
interested parties regarding the analytical framework and the sort of data that the
Commission would need to evaluate whether the current special access rules are
working as intended. Staff Workshop Public Notice, 25 FCC Rcd at 8458-59.8 In
October 2010, the FCC's Wireline Competition Bureau invited the submission of
data to help the agency evaluate the current special access regime. First Data
Request Public Notice, 25 FCC Rcd at 15146-64. And just last month, the Bureau
requested that before the end of 2011, interested parties submit detailed data
concerning the rates, terms, and conditions for special access services. Second
Data Request Public Notice, DA 11-1576 (Attachment A).

As Chairman Genachowski explained in testimony to Congress, he found
"the paucity of data that the FCC had" when he arrived at the Commission "very
troubling," and he saw "no point to doing something in this area that's not based
on a record, that's not based on facts and data, and that wouldn't be upheld in
court." Transcript of Hearing of the Communications & Technology
Subcommittee of the House Energy & Commerce Committee, May 13, 2011, at 40
(Mandamus Petition, Tab 13); see also Letter from FCC Chairman Julius
8 A transcript of the staff workshop can be found on the FCC's website at
http://reboot.fcc.gov/c/document_library/get_file?uuid=f01ad781-6dd7-4ace-a7fc-
bc296dc88315&groupId=19001. As the transcript makes clear, the issues raised
by this proceeding are complicated, and economists disagree about the appropriate
framework for analyzing the special access market.

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Genachowski to Congressman Mike Doyle, August 19, 2011 (Attachment B)
(noting that while "the data we have collected so far will help us to understand how
best to move forward," the special access proceeding presents "a number of
difficult issues" for which "there are no quick fixes").

Even one of the parties that advocates special access reform has
acknowledged that the FCC will need to obtain and analyze more data before it can
determine the appropriate course of action in this proceeding. In March 2011,
Level 3 Communications told the Commission that "the competitive significance"
of special access contract tariffs "is not ascertainable without further data." Letter
from Erin Boone, Level 3, to Marlene H. Dortch, FCC, WC Docket No. 05-25,
March 7, 2011, at 2 (Attachment C). And in June 2011, representatives of Level 3
discussed with FCC staff "the types of pricing data concerning tariffed and non-
tariffed special access purchases by Level 3 that might be available and useful to
enable the Commission to more fully evaluate competition relating to such
purchases." Letter from Erin Boone, Level 3, to Marlene H. Dortch, FCC, WC
Docket No. 05-25, June 23, 2011, at 1 (Attachment D).

Unfortunately, the Commission has faced obstacles in its efforts to gather
the data it needs to make an informed decision on special access. For instance, in
response to the FCC's October 2010 request for special access data, fewer than 10
percent of petitioner COMPTEL's service provider members (7 of approximately

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22
90) submitted data concerning their experience in the special access market. See
note 4, supra.

The Commission is actively engaged in the process of gathering and
analyzing data that might (or might not) bear out petitioners' assertions about
special access pricing. This orderly and responsible administrative process should
not be disrupted while the Commission is making steady progress.
"Absent some unreasonable delay or significant prejudice to the parties, the
Commission cannot be said to abuse its discretion merely by adopting procedures
and timetables which it considers necessary to effective treatment of complex and
difficult problems." Telecomm. Resellers Ass'n v. FCC, 141 F.3d 1193, 1196
(D.C. Cir. 1998) (quoting GTE Serv. Corp. v. FCC, 782 F.2d 263, 274 (D.C. Cir.
1986)). Where (as here) an agency confronts complex and difficult questions, this
Court has held that it is not unreasonable for the agency to take a number of years
to resolve thorny issues. See, e.g., Her Majesty the Queen in Right of Ontario v.
EPA, 912 F.2d 1525, 1534 (D.C. Cir. 1990) (the EPA's delay of "more than nine
years" in resolving an issue was not unreasonable given "the unusual complexity
of the factors facing the agency"). In light of these precedents, and in view of the
Commission's diligent and conscientious efforts to gather the data it needs to
resolve the issues presented by the special access rulemaking, the Court should
deny the mandamus petition.

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23

In assessing the reasonableness of the agency's conduct here, it is also
significant that Congress has not "provided a timetable or other indication of the
speed with which it expects the agency to proceed" in addressing the issues raised
by the special access proceeding. See TRAC, 750 F.2d at 80. In the absence of a
statutory deadline for action, the FCC "has broad discretion to set its agenda and to
first apply its limited resources to the regulatory tasks it deems most pressing."
Cutler v. Hayes, 818 F.2d 879, 896 (D.C. Cir. 1987). The agency reasonably
exercised that discretion here.
For example, the Commission is currently devoting substantial resources to
completing a comprehensive proceeding to reform its universal service and
intercarrier compensation regulations in light of the changing telecommunications
marketplace. The component of the federal Universal Service Fund that supports
telecommunications services in high-cost areas has grown from $2.6 billion in
2001 to $4.3 billion in 2010, but it still primarily supports voice services. Connect
America Fund, 26 FCC Rcd 4554, 4559 6 (2011). Similarly, the current system
of intercarrier compensation "was designed for a world of voice minutes and
separate long-distance and local telephone companies." Id. In the last decade,
however, the communications landscape has changed dramatically: More than 27
percent of adults live in households with only wireless phones; broadband Internet
access revenues have surged from $13.1 billion in 2003 to $36.7 billion in 2009;

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24
and interconnected Voice over Internet Protocol subscriptions increased by 22
percent between 2008 and 2009. Id. at 4559-60 8.
The Commission is working to release soon a comprehensive order that will
fundamentally reform the universal service and intercarrier compensation regimes
to adapt to these market developments. On October 6, 2011, Chairman
Genachowski announced that he is circulating to his fellow Commissioners a
proposed set of comprehensive reforms to modernize the Universal Service Fund
and the intercarrier compensation system. The Chairman has scheduled this
proposal for a vote by the full Commission later this month. See "Connecting
America: A Plan to Reform and Modernize the Universal Service Fund and
Intercarrier Compensation System" (speech delivered by FCC Chairman Julius
Genachowski, Oct. 6, 2011) (Attachment E).
The FCC personnel who have been working on the universal service and
intercarrier compensation proceedings are the same personnel assigned to the
special access rulemaking. To the extent that the Commission has not moved
faster in the special access proceeding due to the agency's allocation of its
available resources to the more pressing subjects of universal service and
intercarrier compensation reform, that reflects a reasonable balancing of the
agency's policy priorities.

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25
To give another example of competing priorities, since 2004 the
Commission has issued more than 20 orders addressing petitions for forbearance
under 47 U.S.C. 160, a number of which have involved special access issues.
Unlike the special access rulemaking, however, forbearance proceedings are
subject to a statutory deadline. The FCC must rule on a forbearance petition
"within one year after the Commission receives it" (or within one year and 90 days
if the agency finds that an extension of the deadline is necessary). 47 U.S.C.
160(c). If the agency fails to act by the deadline, the forbearance petition "shall
be deemed granted." Id.; see also Sprint Nextel Corp. v. FCC, 508 F.3d 1129
(D.C. Cir. 2007). Given the serious consequences of agency inaction in this
context, the Commission understandably gives precedence to addressing
forbearance petitions. The Commission thus has dedicated substantial resources to
its forbearance proceedings including in cases where the forbearance petition was
withdrawn before the agency had an opportunity to issue its dispositive order. See
Letter from Michael J. Copps, Acting Chairman, FCC, to Congressman Henry A.
Waxman, June 5, 2009 (Attachment F) (documenting that FCC staff spent
thousands of work hours on proceedings in which the petitioner withdrew
forbearance petitions shortly before the statutory deadline for a Commission
ruling). The Commission's decision to devote resources initially to proceedings

USCA Case #11-1262 Document #1333787 Filed: 10/06/2011 Page 26 of 115
26
involving forbearance petitions, rather than the special access rulemaking, was
entirely reasonable under the circumstances.

In any event, the Commission is making steady and reasonable progress in
its efforts to review the special access market. It has already collected a significant
body of evidence regarding the operation of that market, and just last month, it
requested the submission of additional special access pricing data before the end of
the year. Given the need for the agency to compile and analyze a comprehensive
record to understand and address those issues properly, it would serve no useful
purpose for the Court to impose on the agency an arbitrary deadline for completion
of the special access proceeding. See Petition at 30 (requesting imposition of six-
month deadline).

II.

Even If Petitioners Could Demonstrate Unreasonable Delay
In This Case, They Are Not Entitled To Mandamus Because
Adequate Alternative Remedies Are Available.


Even if petitioners could establish an "egregious" delay by the FCC and
they cannot they still would not be entitled to a writ of mandamus because they
have "failed to show that there [is] `no other adequate remedy available.'" Baptist
Mem'l Hosp. v. Sebelius, 603 F.3d 57, 64 (D.C. Cir. 2010) (quoting Power, 292
F.3d at 784). To obtain the extraordinary remedy of mandamus, a litigant must
demonstrate that he has "no other adequate means to attain the relief he desires."
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980) (internal quotation

USCA Case #11-1262 Document #1333787 Filed: 10/06/2011 Page 27 of 115
27
marks omitted). Petitioners cannot make that showing here because adequate
alternative remedies are available to them under the Communications Act.

Petitioners observe that the Commission "has a statutory mandate to ensure
that rates, terms and conditions of special access and other telecommunications
services are `just and reasonable.'" Petition at 19 (quoting 47 U.S.C. 201(b)).
Essentially, they maintain that ILECs are violating section 201(b) by offering
special access at rates, terms, and conditions that are not "just and reasonable."
Petitioners conclude that the Commission therefore should revise its rules to ensure
that special access rates, terms, and conditions comply with section 201(b). But
petitioners have several alternative avenues other than an immediate overhaul of
the special access rules for pursuing the relief they seek.
If they object to the rates or terms contained in a newly filed special access
tariff, petitioners can ask the FCC to suspend the tariff for up to five months and to
hold a hearing on the tariff's lawfulness pursuant to section 204 of the Act, 47
U.S.C. 204.9 The statute requires the Commission to issue an order concluding
such a hearing "within 5 months after the date" that the contested rate or term
"becomes effective," 47 U.S.C. 204(a)(2)(A), and provides for refunds, with
9 Petitioners note that Verizon recently revised its special access tariff, increasing
its rates. Petition at 15. Petitioners had the opportunity under section 204 to
request suspension of that tariff revision and a hearing on its lawfulness. They did
not.

USCA Case #11-1262 Document #1333787 Filed: 10/06/2011 Page 28 of 115
28
interest, in the event the FCC determines that the rate is unlawful, 47 U.S.C.
204(a)(1).
Alternatively, if petitioners believe that ILECs are providing special access
on terms and conditions that are not just and reasonable, they can bring an action in
federal district court seeking damages under sections 206 and 207 of the Act, 47
U.S.C. 206-207. Or, as this Court has noted, they can file an administrative
complaint with the Commission under section 208, 47 U.S.C. 208. See Ad Hoc,
572 F.3d at 910 (if "ILECs try to abuse their control over special access lines,"
competitive carriers "can file 208 complaints with the FCC"). Congress directed
the Commission to address any section 208 complaint concerning tariffed special
access rates and terms "within 5 months after the date on which the complaint was
filed." 47 U.S.C. 208(b)(1).

Given the availability of these alternative remedies, petitioners cannot
legitimately claim that mandamus is the only available means of obtaining the
relief they desire. The Court has repeatedly denied mandamus petitions in cases
where an adequate alternative remedy was available to petitioners.10 It should do
likewise here.
10 See, e.g, Baptist Mem'l Hosp., 603 F.3d at 64; Ass'n of Flight Attendants-CWA
v. Chao
, 493 F.3d 155, 159-60 (D.C. Cir. 2007); Power, 292 F.3d at 786-88;
Northern States Power Co. v. U.S. Dep't of Energy, 128 F.3d 754, 759 (D.C. Cir.
1997); Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 709
F.2d 1521, 1533 (D.C. Cir. 1983) (en banc).

USCA Case #11-1262 Document #1333787 Filed: 10/06/2011 Page 29 of 115
29

CONCLUSION


For the foregoing reasons, the Court should deny the petition for writ of
mandamus.
Respectfully
submitted,







Austin C. Schlick
General
Counsel







Peter Karanjia







Deputy General Counsel







Richard K. Welch
Deputy
Associate
General
Counsel







/s/ James M.Carr
James M. Carr
Counsel
Federal
Communications
Commission
Washington,
DC

20554
(202)
418-1740
October 6, 2011

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11-1262

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

In re COMPTEL, et al., Petitioner,

v.

Federal Communications Commission, Respondent.

CERTIFICATE OF SERVICE

I, James M. Carr, hereby certify that on October 6, 2011, I electronically
filed the foregoing Opposition of Federal Communications Commission to
Petition for Writ of Mandamus with the Clerk of the Court for the United
States Court of Appeals for the D.C. Circuit by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the CM/ECF system.
Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.
*Thomas Jones
Colleen Boothby
David P. Murray
Levine, Blaszak, Block & Boothby,
Willkie Farr & Gallagher LLP
LLP
1875 K Street, N.W.
2001 L Street, N.W., Suite 900
Washington, D.C. 20006-1238
Washington, D.C. 20036
Counsel for: COMPTEL
Counsel for: Ad Hoc
Telecommunications Users
Committee


USCA Case #11-1262 Document #1333787 Filed: 10/06/2011 Page 115 of 115
*A. Sheba Chacko
*Daniel L. Johnson
BT Americas, Inc.
Computer & Communications
11440 Commerce Park Drive
Industry Association
Reston, VA 20191
900 17th Street, N.W., Suite 1100
Counsel for: BT Americas, Inc.
Washington, D.C. 20006
Counsel for: Computer &
Communications Industry
Association, Inc.

Andrew J. Schwartzman
*Michael Calabrese
Media Access Project
New America Foundation
1625 K Street, N.W.
1899 L Street, N.W., Suite 400
Suite 1000
Washington, D.C. 20036
Washington, D.C. 20006
Counsel for: New America
Counsel for: Media Access Project
Foundation
Harold J. Feld
*Rebecca M. Thompson
Public Knowledge
Rural Cellular Association
1818 N Street, N.W., Suite 410
805 15th Street, N.W., Suite 401
Washington, D.C. 20036
Washington, D.C. 20005
Counsel for: Public Knowledge
Counsel for: Rural Cellular
Association

*Paul Jones
tw telecom inc.
10475 Park Meadows Drive
Suite 400
Littleton, CO 80124
Counsel for: tw telecom inc.
/s/ James M. Carr

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