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FCC to Vote Friday

CLECs Ask FCC to Maintain UNE, Resale Rules; ILECs Seek Regulatory Relief

Delay plans to remove CLECs' access to an ILEC's unbundled network elements (UNEs) at regulated prices until more-accurate broadband maps can pinpoint where broadband competition actually exists, a group representing CLECs told the FCC. "You need new maps before you can have new rules,” Incompas CEO Chip Pickering told us. He visited with FCC officials in recent weeks to ask them to withdraw the draft NPRM in docket 19-308 that commissioners are expected to vote on Friday (see 1911150016).

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The draft would explore whether the FCC should eliminate requirements that ILECs make available certain UNEs including copper DS0, DS1 and DS3 loops that can be used to deliver broadband before a CLEC upgrades to fiber (see 1910290041). The proposal would also eliminate unbundling and resale requirements for dark fiber transport in wire centers within a half-mile of alternative fiber. USTelecom withdrew the part of its forbearance petition on dark fiber in June (see 1906180081). The FCC is now looking at this in a new context, said Kristine Hackman, USTelecom vice president-policy and advocacy.

"I am disappointed to see this proposed after the work we've done over the past 16 months on the USTelecom forbearance proceedings," said Sonic CEO Dane Jasper. He said the FCC's forbearance decisions eliminated about half of UNEs and "the vast majority of TDM transport" that had been available to CLECs at avoided-cost resale rates. He said the FCC's decision-making in the proceedings reached a reasonable middle ground. "We've been through exactly this with the forbearance docket. This is the same thing. This is the wish list of the incumbents."

But the FCC introduced the draft NPRM to update network unbundling rules on its own, not in response to an industry petition, said Hackman. "We're very supportive of the commission's proposal and applaud the ongoing efforts to update the rules to reflect the modern marketplace." She said since the Telecommunications Act of 1996 passed, "we've seen competition exceed even the wildest ambitions" of its crafters.

"The beauty of an NPRM is it's able to tee up a lot of questions," Hackman said. "We're looking forward to showing there is robust competition, and the rules are no longer needed in urban areas." Hackman said if the FCC's proposals are adopted, CLECs would still have access to UNEs from ILECs, just at retail prices. But Pickering warned when regulated prices are eliminated, price increases are "so high it eliminates competition," and that in turns slows down fiber deployments. "Whether you're eliminating access or charging monopoly prices, both slow down investment," he said.

CLECs often use access to copper loops to accumulate and fulfill demand for broadband services in new markets while they build their own fiber networks, Jasper said. "Incumbents and competitors alike should be rushing toward new networks," he said. "The potential for eliminating access to old copper removes our ability to stand on that same foundation, and it rewards incumbents, who can slow their own deployments."

Building ubiquitous fiber would help support the wireless industry as it moves to 5G and requires more fiber backhaul, Jasper said. He said actions proposed in the draft NPRM could put such fiber deployments at risk. He suggested telco incumbents AT&T and Verizon would be able to use their own fiber to support 5G deployments for their own wireless divisions, but he questioned where that might leave other wireless players.

Asked why ILECs should be forced to provide access to parts of their network facilities when other facilities-based providers, notably cable companies, are not, Jasper said America's incumbent copper telephone network is unique. "It was granted in monopoly," he said. "The infrastructure is the fruit of a non-free-market condition."

The NPRM proposes to exempt rural markets from the new rules if they're adopted, but CLECs aren't appeased. The FCC's proposed definition for rural "is really, really rural, farm houses and farm lands, but not the small towns around it," Jasper said.

"The commission is likely to make significant mistakes and overstate the availability of broadband networks or the existence of competition if it relies on form 477 [broadband mapping] data or the [2013 business data services] data to make decisions regarding revamping the agency's unbundling obligations," said Public Knowledge in a recent filing in docket 19-308.

Granite Telecommunications wants the FCC to expand the scope of its NPRM to revisit its decision from earlier this year (see 1908050009) to forbear from ILECs from avoided-cost resale obligations for TDM-based telephone services delivered over copper loops, it said in a filing last week.

Unlike the USTelecom forbearance petition proceedings, a new UNE rulemaking could take "a very long time while the record is being updated and maps are being completed," Pickering said. "There's no deadline on a rulemaking."

"Our ask is that they vote not to open this rulemaking," Jasper said of his talks with FCC officials, though he admitted, "pragmatically, that's not a likely outcome." He said it's important for Sonic and other CLECs to "make the case in the record that these elements are essential in the market."