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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