In a petition for review of an FCC order denying Petitioner's petitions for forbearance from its unbundling obligations under Section 251 of the Communications Act, the petition is granted, where the FCC's analysis departed from FCC precedent by relying solely on actual, and not potential, marketplace competition.
On Petition for Review of an Order of the Federal Communications Commission
Argued November 17, 2008
Decided June 19, 2009
Before: SENTELLE, Chief Judge, and GRIFFITH, Circuit Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SENTELLE.
Scott H. Angstreich argued the cause for petitioners. With him on the briefs were Brendan J. Crimmins, Michael E. Glover, Edward H. Shakin, and Rashann Duvall.
Robert B. McKenna Jr., Russell P. Hanser, and Travis E. Litman were on the brief for intervenors Qwest Communications International Inc. and Qwest Corporation in support of petitioners.
Richard K. Welch, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Thomas O. Barnett, Assistant Attorney General, Catherine G. O'Sullivan and Nancy C. Garrison, Attorneys, U.S. Department of Justice, Matthew B. Berry, General Counsel, Federal Communications Commission, Joseph R. Palmore, Deputy General Counsel, and Laurel R. Bergold, Counsel.
Brad E. Mutschelknaus, Genevieve Morelli, David P. Murray, Thomas Jones, Randy Branitsky, Russell M. Blau, Joshua M. Bobeck, Philip J. Macres, David E. Mills, J. G. Harrington, and Deanne O'Dell were on the brief of CLEC Intervenors and Amicus in support of respondents.
Joel H. Cheskis, Gerald A. Norlander, Louis Manuta, Stefanie A. Brand, Christopher J. White, Charles M. Browder, Jr., Senior Assistant Attorney General, Attorney General's Office of State of Virginia, Paula M. Carmody, Martha Coakley, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, Jesse S. Reyes, Assistant Attorney General, and Joseph Witmer were on the joint brief of intervenors in support of respondents. David C. Bergmann, Maureen R. Matsen, Assistant Attorney General, Attorney General's Office of State of Virginia, and Tanya J. McCloskey entered appearances.