USTA v. FCC:
A Decision Ripe for the Supremes — continued

[March 25, 2004]

Moving from strange to truly bizarre, the court totally misunderstands the transport market. It treats transmission facilities (interoffice fiber) as if they were movable, fungible services, like buses, not fixed assets in the ground, like train tracks. It treats competition in part of a broadly-construed market as sufficing for the rest of the market, as if, perhaps, they were thinking about radio stations, not fiber:

"We do not see how the Commission can simply ignore facilities deployment along similar routes when assessing impairment. Suppose points A, B, and C are all in the same geographic market and are similarly situated with regard to the ''barriers to entry'' that the Commission says are controlling.

Suppose, further, that multiple competitors supply DS1 transport between points A and B, but only the ILEC and one other CLEC have deployed DS1 transport between A and C. The Commission cannot ignore the A-B facilities deployment when deciding whether CLECs are impaired with respect to A-C deployment without a good reason."

Good reason? By this logic, if there's lots of competitive fiber in the ground between the Hudson St. and Broadway Central Offices in Manhattan, then this must be taken into account when judging the availability of circuits to Staten Island, to White Plains, and to Hempstead!

Of course, if you are a CLEC in Hempstead, all the bandwidth in the world would do no good if it didn't go to Hempstead.

The Court also ignores the supracompetitive nature of many Special Access rates, and in at least some cases treats the availability of Special Access as a valid substitute for TELRIC-rated UNEs:

"We therefore hold that the Commission's impairment analysis must consider the availability of tariffed ILEC special access services when determining whether would-be entrants are impaired."

The above criticisms are barely sufficient to scratch the surface of the DC Circuit's so obviously contrived and pro-ILEC decision. To borrow a line for former FCC Chairman Hundt:

The [D.C. Circuit] Court of Appeals decision is a very regrettable setback for the purpose and intent of the 1996 Telecommunications Act. In several significant respects, the decision is wholly inconsistent with the mandate and intent of Congress. The antidote to the [D.C. Circuit] decision can be found in the United States Supreme Court.

That is where we should now go for relief.

Any way you slice it, USTA v. FCC is ripe for an appeal to the Supreme Court and the issuance of a stay order. In the telecommunications world, however, politics is as much a factor as good law and sound reason. Let's just hope that politics and law are in alignment or a vast many of the 19 million American consumers and businesses who now enjoy alternatives to the monopoly ILECs will be left out in the cold, even as the warmth of summer arrives.

—End

 

USTA v. FCC: A Decision Ripe for the Supremes

USTA v. FCC, page 2: It gets worse

USTA v. FCC, page 3: Moving from the strange to the truly bizarre