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By the end of the year, if you want to switch cell phone companies you will no longer have to give up the number youre using, but not surprisingly the companies are fighting the rule that says you can take your number with you. On Tuesday the wireless industry tried to convince a three-judge panel that carriers should not be obligated to “port” numbers among themselves.
Making its case before the U.S. Court of Appeals for the District of Columbia Circuit, the wireless industry argued that it should not be subject to the same telephone number portability rules that the Federal Communications Commission already enforces for wireline carriers. Having convinced the commission several times to postpone the rules, cell phone carriers are now trying to get out of them altogether.
At the core of the industrys argument is an underlying conviction that wireless carriers should not be subject to any FCC rules other than those that promote public safety or national security. It is a conviction for which the appeals court judges showed considerable skepticism Tuesday.
“The question that leaps out of your argument is that nothing is essential,” Judge Harry Edwards told Andrew McBride, the attorney representing Verizon Wireless and the Cellular Telecommunications & Internet Association. “I cant think of [any FCC rule] that meets your test.”
Since the passage of the Telecommunications Act of 1996, which attempted to begin deregulating the industry, the FCC is required to show that a rule is necessary to the public interest if it wants to retain a rule that is properly challenged. In the battle over wireless number portability, the industry is arguing that “necessary” means absolutely essential, while the FCC maintains that it means useful and appropriate to promote competition.
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McBride told the court that the industry is already competitive and that the commission has not shown that portability would help cell phone users. “Its speculative to say that this even offers consumer benefits,” McBride said.
Judge David Tatel questioned the logical consequences of the industrys stance. Tatel said that the industrys position on the term “necessary” would place a higher burden on the FCC to retain a regulation than it confronted in enacting the regulation to begin with. McBride responded that Congress in 1996 shifted the commissions burden to justify its rules.
In defending the FCC, John Ingle, deputy associate general counsel, said that it would be a strange situation if the agency could adopt a rule as in the public interest one day, and the next day someone could require that the same rule be eliminated unless it met a higher standard.
Even if the appeals court upholds the FCCs decision, wireless carriers might not be prepared to let you take your number with you if you decide to leave; McBride told the judges that the alternative to bringing the case against the portability rules now is to come back Nov. 24 once the rules go into effect.
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