Letter from from Sen. Mike DeWine (R-OH) and Sen. Herb Kohl (D-WI) to Attorney General John Ashcroft.
Date: March 22, 2004.
Re: USTA v. FCC (triennial review order case).
Source: Office of Sen. DeWine.
Editor's Notes: TLJ added HTML formatting and hyperlinks.

March 22, 2004

The Honorable John Ashcroft
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Dear Attorney General Ashcroft:

We are writing to urge that the Department of Justice support the Federal Communication Commission's motion to stay and to appeal to the U.S. Supreme Court the recent decision of the District of Columbia Circuit Court of Appeals in United States Telecommunication Association v. Federal Communications Commission (March 2, 2004).

This case vacated the FCC's Triennial Review rulemaking setting forth the rules under which the incumbent phone companies must interconnect their networks with competitive local exchange carriers pursuant to the Telecommunications Act of 1996. This decision has vital national public policy implications because the final form taken by the interconnection rules will dictate how the market for local phone service will develop and to what extent businesses and consumers will reap the benefits of competition in that market. While we express no opinion as to the wisdom of the specifics of the FCC rules or the DC Circuit rejection of those rules, we believe that these matters-issues which have been subject to eight years of litigation and dispute among the expert agency, the many industry players, and the appellate court-are of such fundamental importance to national telecommunications competition policy and to consumers that the Department of Justice should seek their final resolution at the Supreme Court.

The D.C. Circuit's ruling also implicated important administrative law issues related to an administrative agency's power to delegate certain types of decision-making authority to the states as well as the deference that a court should accord a regulatory agency's decisions. These issues deserve Supreme Court consideration as well.

For the above reasons, we believe this important decision merits review by the Supreme Court. We strongly encourage the Department of Justice to support the FCC's motion to stay and to appeal the decision to the U. S. Supreme Court.

Very respectfully yours,

CC: The Honorable Theodore Olsen
        The Honorable R. Hewitt Pate