FCC Officials Say TRO Remand Order Still on Target, Will Be Limited
The draft TRO remand order circulating among commissioners doesn’t cover a wide area of issues, but rather is limited to concerns raised earlier this year by the U.S. Appeals Court, D.C., FCC Wireline Bureau Chief Jeffrey Carlisle said Thurs. at an FCBA-Practising Law Institute conference. Carlisle told the group that the court basically upheld the impairment standard set in the earlier TRO order “so we're using the upheld standard to review 3 elements” questioned by the court -- local switching, high-capacity loops and transport. “We're not starting from zero and building up an unbundling policy,” he said.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Nonetheless, the project “is not a walk in the park,” Carlisle said. There are areas of intense controversy, such as how to treat high-capacity loops and whether to include a definition of mass markets in the order, Carlisle said. “These are the main areas parties are focusing on” in ex parte filings and meetings, he said.
The definition question goes back to the last order’s language easing unbundling rules for fiber to the mass market. Carlisle said confusion has arisen because the earlier order didn’t say where the cutoff was between “mass market” and “enterprise” or big business markets. It was learned that the bureau had originally proposed including a mass market definition in the draft order, but the section was dropped after FCC Chmn. Powell began circulating the order to other commissioners for voting.
Powell, who engaged in a Q-&-A session at the conference, told reporters afterward that the agency was still on target to act on the TRO remand at the Dec. 15 agenda meeting. Asked by a reporter if the agency was behind on another issue -- the DTV transition -- he said the 8th floor was “so focused on the triennial review” right now that there’s little time for other issues. He told the reporter to ask about the DTV issue once the TRO proceeding is over. Powell added he would “like to see the DTV transition accelerate.”
Powell said revising a UNE order that has been overturned by the courts 3 times can be “scary.” Appeals are inevitable because “everything the Commission does is appealed because we are writing the rules for the future,” he said, but: “This one is more profound because when you lose 3 times it’s scary. You have to be more careful than ever. Each time you lose it gets harder.”
The debate over whether IP-enabled service is an information or telecom service is “a perfect example of everything that’s wrong with the Telecom Act,” Powell said. Right now, there’s only a choice between “heavy- handed common carrier regulation” or no regulation,” he said. “We need a 3rd way,” a middle ground, but the Telecom Act “doesn’t give us a 3rd way,” Powell said.
Greg Rothschild, minority counsel to the House Commerce Committee, said Congress next year undoubtedly will make “another serious effort to turn back some of what the FCC did” in media ownership. Speaking after Powell and Carlisle, Rothschild said there’s also a possibility of DTV transition legislation because “Congress is becoming impatient with broadcasters” for not returning the spectrum. The view is rooted in concerns about public safety and industry unlicensed spectrum needs, although Congress also is hoping the FCC will act soon, he said.
Powell said the FCC’s preemption of state regulatory authority over VoIP shouldn’t be viewed as a “war between states and federal” regulators. It’s “about what’s best for consumers.” States will continue to have a role, for example in consumer protection,” he said, adding, “This shouldn’t be a debate.”
However, tension with state regulators was evident in later comments by Neb. PSC Comr. Anne Boyle, who said she didn’t “agree with Chairman Powell that we should be evaporated as regulators.” Matthew Brill, aide to FCC Comr. Abernathy, said the Commission’s goal was to provide a “unified” approach to VoIP because VoIP can’t be addressed in a geographic manner. “That’s not to say there isn’t a state role, it’s just not to independently set rules different from federal rules.”
Powell on Media Ownership Controversy
Powell said it would take 5-7 years to complete a media ownership proceeding and forge a political consensus on the issue. Responding to a question, Powell said he thought “sadly” that it would take that long to get it “untangled and settled again.” Media Access Project Pres. Andrew Schwartzman said the FCC can complete media ownership rules in months not years: “There is a political consensus. The chairman’s problem is he doesn’t like it.” Earlier this week, the Supreme Court granted the FCC request for a 30-day extension to file a petition for a writ of certiorari on the 3rd U.S. Appeals Court, Philadelphia, media ownership ruling (CD Dec 2 p12).
Powell said one of his biggest disappointments was the media ownership debate. He said media ownership “erupted into a public debate that didn’t take us anywhere… I'm not sure where we are anymore.”
Notebaert Urges Equal Treatment for Cable-Telco
Regulatory treatment shouldn’t differ when the same technology is being offered by different types of companies, Qwest Chmn. Richard Notebaert said during a lunch speech at the FCBA-PLI conference. The differences are becoming more apparent and more unfair as new technologies such as IP-enabled services develop that can be offered by a variety of industry players, he said: “It’s time to acknowledge technology has changed the world, not regulation. Isn’t it time to back off?”
Notebaert complained that a Qwest request for non- dominant treatment in Omaha, brought on by local telephone competition by Cox, has been languishing at the FCC. “The process reflects no sense of urgency,” he said. The Omaha situation is an example of the convergence occurring in the communications industry, he said, except that “we are regulated and they aren’t.”