CLEC Industry Awaits Final TRO Remand Order

Speculation regarding the outcome of the FCC’s final TRO Remand decision ran rampant during presentations at the ALTS 2004 Business and Policy Conference held Wednesday in Washington, D.C. FCC staffers, who appeared on many of the conference panels, were peppered with questions about the timing and contents of the anticipated ruling. As expected, answers were more forth-coming regarding timing and more circumspect or speculative regarding content. Most panelists –government and non-government representatives agreed that the FCC would likely issue its order on Dec. 15th or Dec. 22 at the latest in order to meet the end of year deadline for action established by the DC Court of Appeals.

The window for influencing the rulemaking process is very narrow and many competitive providers in attendance at the ALTS event indicated they would be involved in lobbying efforts at the FCC before leaving town. FCC Chairman Michael Powell already has prepared his first draft of the rules for circulation among the other four commissioners.

Panelists said Powell badly wants a unanimous decision and is willing to seek some compromises to attain it. Even more so, however, he wants rules that were certain to withstand likely further legal challenges, they said.

Michelle Carey, Deputy Bureau Chief of the Wireline Competition Bureau, said, "I think the order will deal with just those issues that are relevant to the remand. Other tangential issues (e.g.: Section 251 vs. 271, state presumption, mass-market definitions) may be spun off and dealt with in further rulemaking procedures."

Panelists expressed general agreement that the FCC rules would act to insure that impairment decisions were not left to the states. In addition the FCC would search for a way to count intermodal competition (both existing and potential) and intramodal competition when defining market competition.

They also debated whether the FCC would be able to eliminate unbundling requirements where competition is possible, if not present. As a result of the remand order, we will be looking at the question of competitiveness in mass market and the enterprise markets a bit differently, said Carey. We will take into account both the effect of, and potential for intermodal competition in mass markets. In the enterprise markets, particularly for the small to medium commercial establishments, intramodal competition continues to be the primary focus."

John Stanley, Assistant General Counsel at the FCC, added, Due to the embryonic nature of intermodal competition, we may have to make some predictive judgments based on the nature of these markets.

In terms of continued availability and timing of UNE-P, it appears that the FCC has tipped its hand on this matter through its adoption of interim rules that establish phase outs and price increases for new and embedded customer bases. Representatives of the CLECs indicated some hope that deadlines affecting availability of UNE-P for the provisioning of new and continuance of existing UNE customers might be lengthened.

Another critical focus for competitors was continued access to high-capacity loops. While there was no consensus it was agreed that the FCC would likely devise a competition test to use on a case-by-case basis to determine access to DS1 loops.

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