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Phone firms compete in court, but not in market

GCI says court ruling doesn't block way for competition

Posted: Wednesday, February 07, 2001

General Communication Inc., vying to enter the Juneau and Fairbanks markets for local telephone service, asserted Tuesday that a recent U.S. Supreme Court decision doesn't overrule an earlier state order for competition to proceed.

GCI filed a brief in Anchorage Superior Court opposing an attempt by Alaska Communications Systems to halt an ordered interconnection of their systems. ACS, the parent company to PTI Communications of Juneau, is the monopoly provider in both markets.

ACS wants Judge Sigurd Murphy to "stay" last fall's interconnection order by the Regulatory Commission of Alaska, which set rates for the lease of ACS equipment by GCI. ACS contends those rates amount to an unconstitutional confiscation of property.

If successful in getting the stay, ACS would ask Murphy to reinstate the "rural exemption" it used to enjoy under the pro-competition U.S. Telecommunications Act of 1996. That would force GCI, after four years, to start the state regulatory process all over again.

The Eighth Circuit Court of Appeals last July threw out federal regulations placing the burden of proof on the incumbent local service provider in Iowa to show competition would imperil universal, affordable access. The U.S. Supreme Court decided on Jan. 22 not to review that case.

Because the Supreme Court declined to review the Eighth Circuit ruling, ACS contends the issue is settled and the burden is now on GCI to show that it wouldn't cause rate hikes for some "high-cost" consumers who currently are being subsidized.

The recent decisions "undercut - completely and with finality - the legal basis upon which the termination of the rural exemption was ordered by the RCA," according to ACS' filing with the Superior Court. "The U.S. Supreme Court declined to take up these issues. There is nowhere else for the RCA and GCI to go. Certainly, not to this court. Determinations such as these, by federal courts on questions of federal law, bind the state courts and agencies."

GCI emphatically rejected that interpretation.

"The Alaska Supreme Court has held that the Alaska courts are not bound by the interpretations of federal law by the federal Circuit Courts," says the GCI brief. "When a federal question is involved, the courts of Alaska are not bound by the decisions of a federal court other than the United States Supreme Court."

Dana Tindall, senior vice president for GCI in Anchorage, said ACS is flouting the law by refusing to cooperate with the RCA's interconnection order, even before Murphy rules on the request for a stay. However, GCI dropped its threat to pursue contempt proceedings against ACS after the incumbent petitioned the judge for an expedited ruling. ACS has asked Murphy to rule by 5 p.m. Thursday. Tindall said she expects a ruling in two weeks.

Bill McAllister can be reached at billm@juneauempire.com.



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