Citizens Telecommunications Company of Minnesota v. FCC, No. 17-2296 (8th Cir. 2018)
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Petitioners challenged the FCC's 2017 order altering regulations for business data services (BDS). ILEC Petitioners challenged new price cap rates in the order and CLEC Petitioners challenged most of the other changes in the order. The Eighth Circuit granted CLEC's petitions in part and vacated in part. The court denied the petitions for review on all other issues.
The court held that the FCC's 2016 notice gave CLEC adequate notice of large scale deregulation and of the adopted Competitive Market Test, but the notice failed to give sufficient notice of its ending of ex ante regulation of transport services. This failure prevented interested parties from informed participation in that portion of the rulemaking and release of a draft of the proposed order did not remedy the FCC's violation of its obligations under the Administrative Procedure Act. Therefore, the court vacated that portion of the final rule affecting time division multiplex transport services and remanded for further proceedings. The court rejected challenges to the FCC's adoption of the Competitive Market Test. The court also held that the FCC did not act unreasonably in excluding low bandwidth Ethernet business data services from price caps; in declining to extend the Interim Wholesale Access Rule to business data services; and in setting the "X-factor" annual price cap reduction at 2%.
Court Description: Grasz, Author, with Shepherd and Melloy, Circuit Judges] Petition for Review - Order of the Federal Communications Commission. In challenge to the FCC's 2017 order altering its regulations for business data services, the FCC's 2016 notice gave the Competitive Local Exchange Carrier petitioners adequate notice of large scale deregulation and of the adopted Competitive Market Test; however, the 2016 notice failed to give sufficient notice of its ending of ex ante regulation of transport services, and the failure prevented interested parties from informed participation in that portion of the rulemaking; release of a draft of the proposed order did not remedy this violation of the FCC's obligations under the Administrative Procedure Act; that portion of the final rule affecting time division multiplex transport services is vacated and remanded for further proceedings; challenges to the FCC's adoption of the Competitive Market Test rejected; the FCC did not act unreasonably in excluding low bandwidth Ethernet business data services from price caps; the FCC did not act unreasonably when it declined to extend the Interim Wholesale Access Rule to business data services; the FCC did not act unreasonably in setting the "X-factor" annual price cap reduction at 2%.
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