During oral arguments last Friday, a three-judge panel of the DC Circuit Court questioned the FCC’s interpretation of a 1996 Telecommunications Act provision that the agency cited in its determination that Verizon Communications improperly engaged in retention marketing toward departing customers during the period in which their phone numbers were being ported to competitive carriers. The case at hand concerns an FCC order, handed down last June, that addresses a complaint filed by cable operators Comcast, Time Warner Cable and Bright House Networks. In their petition, the cable companies argued that Verizon’s practice of targeting migrating customers with retention marketing prior to the completion of phone number porting requests violates Sections 222 and 201 of the 1996 Telecommunications Act. Ruling in favor of the cable firms, the FCC concluded that Verizon illegally used information that is deemed proprietary under Section 222(b) for the purpose of winning back customers during the porting process, noting: “the [local service request] discloses in advance that a competing carrier has convinced a particular Verizon customer to switch to a competing carrier’s voice service on a specific date.” In arguments before the court, Verizon contended that, under Section 222(b), it should be able to use information gleaned from the porting process for retention marketing because that process constitutes a service that is provided to a competing carrier. Verizon also told the judges: “it is contrary to the First Amendment that customers should be denied information about cheaper service if they stay where they are.” Hinting at potential agreement with Verizon, Judge David Tatel observed, “when Verizon provides number porting, it is acting in a way of providing a telecommunications service” that, in turn, allows “a competitive carrier to provide a telecommunications service.”