Major Forbearance Process Reform Expected This Summer
The FCC may substantially reform the forbearance process as soon as this summer, said agency and industry officials. An order, rather than a further notice of proposed rulemaking, seems likely, they said. It appears all three commissioners are on board to do reform, and they have support from House Democrats, industry sources said.
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There’s an “appetite” at the FCC, and especially in the chairman’s office, to move forward “pretty quickly” on forbearance procedural reform, and it could act before Julius Genachowski arrives, said a lawyer for competitive local exchange carriers. The commission received comments and replies on forbearance process reform last year. Earlier this month, acting Chairman Michael Copps said he planned to circulate an item soon (CD May 14 p5). Lobbying is expected to heat up soon, with CLECs aiming to provide more legal analysis to support procedural changes, the CLEC lawyer said.
Copps has long been interested in reworking forbearance procedures. The matter gained momentum after Verizon withdrew a forbearance petition covering unbundling in Rhode Island days before the FCC was to issue an order (CD May 18 p6), the CLEC lawyer said. At the FCC’s May meeting, Copps expressed disappointment in the withdrawal, noting that reviewing forbearance petitions is costly and labor-intensive for the agency.
The Verizon matter got House Democratic leaders’ attention, too. On May 15, Copps received a letter from top House Democrats, including Reps. Henry Waxman of California, John Dingell of Michigan, Rick Boucher of Virginia, and Edward Markey of Massachusetts. They asked Copps to provide information by June 5 on the impact of Verizon’s forbearance withdrawal. They sought “a detailed description of Commission resources that were expended, and at what level, in considering these … petitions prior to Verizon’s withdrawal … We also request an estimate of the financial impact on the Commission, as well as an estimate of the total hours spent by Commission staff considering the record and drafting any decisions.”
The FCC is expected to consider last-minute withdrawals and other problems that competitive carriers say have plagued forbearance proceedings. The order may create new withdrawal procedures that would make it tougher for carriers to withdraw late in the process, the CLEC lawyer said. The FCC might also make rules to prevent last-minute submission of evidence, the attorney said.
The FCC may consider calls by incumbent carriers to adopt a new internal timeframe for considering forbearance petitions, said a wireline industry official. The FCC almost always extends by 90 days its 12-month deadline to review forbearance petitions, and generally doesn’t look at the petition until then, the official said. If the agency considered petitions earlier, companies wouldn’t have to send new evidence late in the process, the official said.
Competitors want the commission to change the protocol for tie votes, the CLEC lawyer said. Under current rules, a stalemate means the petition is granted, and the decision can’t be appealed. Competitors want a tie to mean denial. The commission’s hands may be tied by a 2007 decision in the U.S. Court of Appeals for the D.C. Circuit, which affirmed the deemed-granted provision. Changing the rule would require a change in the law, said the wireline industry official. Not so, said the CLEC attorney. The D.C. Circuit case, Sprint Nextel v. FCC, shouldn’t preclude the regulator from changing the rules on a going-forward basis, the lawyer said, because the court relied on the FCC’s policy at the time of treating tie votes as non-actions.