U.S. Appeals Court, D.C., sided with U S West Tues. and remanded ...

U.S. Appeals Court, D.C., sided with U S West Tues. and remanded FCC order that had denied company’s request for forbearance of dominant carrier regulation for provision of high- capacity services in Phoenix and Seattle. Court ruled that FCC was inconsistent when it denied U S West’s petition for lack of reliable data on market share. To gain lessened regulation, U S West had to prove it faced competition for provision of high- capacity services in those 2 cities. In opinion written by Chief Judge Harry Edwards, court said FCC in past had relied on other measures such as elasticity to determine existence of competition and in one case made nondominance determination “in the absence of any market share data.” Court remanded case because FCC never specifically said market share was “essential” to prove competition, Edwards said. Court denied related petition by AT&T and WorldCom that questioned appropriateness of FCC’s telling U S West it still might qualify for pricing flexibility under separate process even though it lost forbearance request. AT&T and WorldCom argued that such language was backdoor way of giving U S West relief but Edwards called that argument “specious claim.” He said it was “clear that the forbearance order does nothing more than indicate that U S West is eligible to apply for relief under the pricing flexibility order.” However, court also denied suggestion by FCC counsel in oral argument that availability of pricing flexibility process lessened need for forbearance requests. Edwards said “U S West and other such petitioners are entitled to pursue forbearance under [Sec. 10 of Telecom Act] without regard to the pricing flexibility order.” Court panel also included Judges David Sentelle and Raymond Randolph.