Posted 03/2000
Slippery When Wet
FCC Ruling on EELs Expected Shortly
By Kim Sunderland
The enhanced extended link (EEL) has crept out of the depths of the FCC's UNE remand decision and is rearing its head in search of the local loop. CLECs are standing nearby with their nets, ready to snatch the EEL as soon as the FCC says ILECs have to let it go.
In its 1999 UNE remand order, the FCC (www.fcc.gov) clarified that requesting carriers can obtain a combination of loop, multiplexing and transport--otherwise known as the EEL--under the ILECs' special access tariffs, and then recombine existing UNEs to bypass the ILECs' network. The EEL has the potential to lower dramati-cally the cost of competitive entry by reducing the need for multiple collocation arrangements. However, ILECs scream such a requirement taps into their revenues, and they want the FCC to restrict its use. The FCC, in its UNE order, requested further comment on the issue, specifically on whether it has authority to require such UNE combinations. With the record near completion, the FCC is poised to decide the EEL's fate for CLECs. A decision could come as soon as this spring.
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| Jason Karp |
"Unrestricted EEL access is critical," says Jason Karp, director of legal and regulatory affairs for Net2000 (www.net2000.com), a smart-build CLEC. "We want unfettered access in order to provide the full integration of services that our customers want." Karp says he doesn't know how to plan for the long term while the EEL issue remains unresolved. Also, he's not sure how a restriction would be enforced if the FCC decided to restrict the use of the EEL.
The ILECs have requested that EEL users are prohibited from using them solely to provide exchange access ser-vices. The ILECs claim that special access services support universal service and an unrestricted EEL would erode this support. Therefore, they say the government has a duty to assure special access rates be protected from competition. The ILECs add that restricting EEL use would promote local competition by encouraging facilities to build out. Competitors say there's no evidence that universal service plays any role in special access pricing. They also cite Telecom Act language that prohibits ILECs from restricting CLEC access to UNEs. Although the FCC unanimously approved the UNE remand order, there was dissension among the commissioners on the EEL issue.
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| Jonothan Askin |
"The CLECs should be able to do what they want with them," adds Jonathan Askin, vice presidentof law for CLEC association ALTS (www.alts.org).
It's a tenacious issue at best, and one that exemplifies the FCC's difficulties in opening the local access network to competition through unbundling the local loop. Karp and Askin, along with Jeffrey S.
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| Lawrence J. Spiwak |
Lanning, FCC special counsel, and Lawrence J. Spiwak, president of the Phoenix Center (www.phoenix-center.org) think tank, will tackle the EEL and other issues when they discuss the FCC's approach towards local loop unbundling this month during an Institute for International Research (www.iir-ny.com) conference in Washington.
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| Jeffrey S. Lanning |
Lanning believes the FCC's approach to EEL has been consistent with the Telecommunications Act of 1996. It's a logical and predictable approach that's worked in long distance, he says, so why wouldn't it work in the local markets. "There's been the arguments made that if you make it too easy for competitors then they won't build. This didn't occur in long distance and plenty of networks have been built," he says. "Those making these arguments have been the ones who have the most to lose from there being too many networks--all the ILECs make this bypass argument in which they say they're getting killed by competitors bypassing their networks. Unbundling creates demand for facilities because a competitor enters a market, develops a customer base and then must build networks to handle the traffic."
What needs to happen now, Askin says, is that "the CLECs, FCC and Enforcement Bureau need to get down to the nitty-gritty of explaining nondiscriminatory access to local loops." The FCC and CLECs need to be vigilant that the ILECs' new network technologies are competition friendly. "My fear," Askin says, "is that the ILECs will deploy network technologies that competitors can't interconnect with."
Unbundling is pro-competitive, says Spiwak, a former FCC attorney, who wonders what kind of long-term market structure the FCC is aiming for. Generally, Spiwak says the FCC's overall policy making doesn't bring true competition. "We have unbundling but then the FCC approves an increased horizontal reconcentration of the ILEC industry [through BOC mergers]. It makes no sense."
Nonetheless, the FCC continues its attempts to implement the Telecom Act's local competition provisions, knowing that an EEL decision--unrestricted or otherwise--could put the federal agency in another court battle. "I expect someone to challenge the decision," Karp says. "The single biggest challenge we face in the competitive industry is uncertainty and delay in litigation."
