During oral arguments on Monday, a three-judge panel of the D.C. Circuit Court of Appeals questioned the FCC’s rationale for denying Verizon Communications forbearance from unbundled network element and other competitive requirements in six markets, as they suggested that the FCC should have based its ruling on the ability of competitors to provide service in a given area instead of on the percentage of the market that is served by competitors. The case pits Verizon against the FCC, which in December 2007 rejected Verizon’s petition for forbearance from loop and transport unbundling obligations, dominant carrier tariff requirements, and price cap regulations within the following markets: Boston, New York, Philadelphia, Pittsburgh, Providence, Rhode Island, and Virginia Beach. Denying relief, the FCC ruled unanimously that, “the current evidence of competition does not satisfy the [Communications Act] Section 10 forbearance standard with respect to any of the forbearance Verizon requests.” Explaining the decision to the court, FCC attorney Richard Welch noted that competitive market penetration in the six listed markets did not approach that of Omaha, Nebraska, Anchorage, Alaska and other markets in which the FCC had previously granted the requests of incumbent carriers for forbearance. As such, Welch maintained that the FCC “reasonably” denied forbearance as “Verizon is [ruled] to be dominant . . . and there is impairment under the rules.” Welch’s argument, however, did not appear to satisfy Judge Thomas B. Griffin, who asked: “if you are looking at market share, is that the metric we should be using?” Hinting that statistics on market penetration alone may not paint an accurate portrait of competitive market access, Senior Judge Harry T. Edwards questioned: “can [a competitive carrier] have full access to competition and fail?” While admitting that, “competitors can fail,” Welch replied: “the Commission is looking for signs that competition is working.”