The Commission is asking the world whether or not the local phone company should be forced to provide access to independent ISPs. Your ISP cannot afford not to comment on potential new broadband rules.

by Patricia Fusco ISP-Planet Managing Editor [December 13, 2001]

But this is a new group of regulators that have publicly stated they will remain open-minded when it comes to implementing new regulations directly impacting broadband service deployment—directly impacting your ISP business. If you think the FCC won't listen to your concerns or that commenting on a Notice of Proposed Rulemaking (NPRM) is a waste of time, take a moment to think again.

Along with its NPRM designed to review what ILEC lobbyists call "burdensome" tariffs and pricing concerns, federal regulators are taking initial steps to complete its first triennial review of policies concerning unbundled network elements (UNEs), as specified the Commission's UNE Remand Order in 1999.

UNEs are the part of ILECs' phone networks that carriers must make available to rival carriers seeking to provide telecom. Regulators and lawmakers recognize that ILECs control some bottleneck facilities. This is why Congress adopted section 251 of the 1996 Act to overcome the obstacles posed by the element of monopoly control. The Act was intended to prevent such anti-competitive business practices as lies and red tape, as well as basic greed and gluttony.

The FCC plans to examine the framework under which ILECs must make UNEs available to competing carriers. The Commission's action seeks to ensure that its regulatory framework reflects recent technological advances and marketplace developments.

The FCC wants to clearly identify how ILECs are required to provide access to their facilities, including a more granular analysis of whether and how competing carriers are impaired in their ability to provide services. Generally, the Commission is seeking comment on most aspects of its unbundling framework, including:

• Application of the statutory "necessary" and "impair" standards, as well as whether and how the Commission should take into account other goals of the Act, such as encouraging broadband deployment, investment in facilities, and technological innovation.
• A more targeted approach to defining specific network elements, such as whether or not the unbundling rules should vary by type of service, geography, or other factors.
• The proper role of state commissions in the implementation of unbundling rules.

The UNE NPRM incorporates several ongoing proceedings involving various unbundling obligations, including the next generation network proceeding, among others.

If your ISP business is dependent on competitive local exchange carriers (CLECs) for any type of broadband services, like digital subscriber line (DSL) access or collocation services, you will want to make your views known concerning FCC Docket No.: CC 01-339. The NPRM process allows you some time to assemble your thoughts as to how "necessary" your CLEC is to your ISP business and if your business would be "impaired" if your upstream provider lost access to incumbent carriers facilities.

The FCC treats ILECs as dominant regional carriers, so they are subject to certain requirements, such as tariff filings and pricing requirements. Under Docket No.: CC 01-337, the Commission wants to make sure that there are incentives for broadband growth and investments.

Remember, the Commission's modus operandi for broadband competition means that all high-speed services are created equal once they exceed 200 kilobits per second. That is, cable access competes with a T1 feed, which competes with satellite services or DSL. So this NPRM begs for comments as to any changes the Commission should make in its traditional regulatory requirements of ILECs' broadband services. In particular, the item asks:

• What the relevant product and geographic markets should be for broadband services
• Whether ILECs possess market power in any relevant market
• Whether dominant carrier safeguards or other regulatory requirements should govern ILECs' provision of broadband service

FCC Chairman Michael Powell wholeheartedly supports both NPRMs. In a statement released Wednesday, Powell said he vigorously supports the Notices to review of the regulatory requirements applicable to ILECs provisioning high-speed telecom services.

"The proceeding determines whether there is potentially robust competition among multiple types of broadband service providers and suggests that we should avoid subjecting incumbents to the same regulatory burdens that we impose on these carriers with respect to their provision of local telephone service," Powell said. "That is, we ask whether ILECs, which are so clearly dominant in the provision of local phone service, must also be treated as dominant as they use DSL and other technologies to provide high-speed telecommunications services in competition with cable modem service providers and other types of platforms."

Powell added that these proceedings should not suggest a grand departure from the FCC's ongoing efforts to implement unbundling, collocation and other market-opening requirements with respect to ILECs. He said the Commission is duty-bound to continue implementation and enforcement of regulations in line with the 1996 Telecom Act.

Referencing the NPRMs, Powell said the potential new rules are one way to develop further avenues of thinking about how regulation can serve to help or hinder broadband deployment.

"It is, in that sense, not a signpost heralding a new direction but an attempt to add yet another arrow to the regulatory quiver we will use to attack and, in conjunction with other forces outside our purview, eventually subdue the broadband beast," Powell said.

At this point, Powell wants to stress that he is open-minded as to the shape and form new broadband regulations could take. He said the importance of broadband deployment to the public interest and welfare is too great to disregard any potential method of facilitating that deployment.

"In sum," Powell said, "we must ensure that we leave no stone unturned in our pursuit of this important goal.

In a separate statement made by Commissioner Michael J. Copps, one of the newest federal regulators on the block reiterated that competition is king and that the FCC has not reached any tentative conclusions.

"Some parties may read these Notices and conclude that the Commission has a predetermined agenda to remake the competition framework," Copps said. "Whether accurate or not, this perception, coupled with the uncertainty created by these broad Notices, can damage competition as surely as any final rules adopted by this Commission. "

Commissioner Kevin J, Martin also supports the NPRMs and has stated before that the promotion of facilities-based competition should be a fundamental priority of the Commission.

"The goal of the Telecommunications Act of 1996 was to establish an environment that promotes meaningful competition and allows for deregulation. To get to true deregulation, we need facilities-based competition," Martin said. "Without such competition, we will always need a regulatory body to set wholesale and retail prices.

Martin added that any changes made to broadband rules should ensure there are adequate incentives for both ILECs and CLECs to invest in new equipment.

"I reiterate my commitment to making sure that CLECs are able to obtain, in a reasonable and timely manner, those facilities of the ILECs that are truly essential," Martin said. "No one expects CLECs to build entire networks from scratch overnight. Enabling CLECs to gain meaningful access to essential facilities controlled by ILECs thus remains crucial to promoting facilities-based competition."

In closing, Martin said that he looks forward to furthering the Commission's goal of making meaningful facilities-based competition a reality in the U.S.

The FCC has adopted an e-comments filing system. You can easily make your opinions about both NPRMs be known to the Commission, as long as you can submit them in the proper formats allowed, which include Microsoft Word 6.0 and higher, Excel 4.0 and higher, Word Perfect 5.1 and higher, ASCII Text, and Adobe Acrobat Portable Document Format (PDF).

Nearly every ISP owner or operator I've spoken with over the past four years has a woeful tale about the realities of negotiating for UNE access, last-minute price changes on T1 contracts citing tariff adjustments, or why DSL access is a non-profit business proposition in your ISPs service area. Now is the time to let your collective voices be heard. If you miss this opportunity, there can be no complaining about nasty ILECs running roughshod over rivals in your neck of the woods. The FCC says it's willing to listen. Go give the Commission an earful.

— End

 

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