Posted 11/2000
Policy Forum
The New Enforcement Bureau
Can the FCC Deliver on Its Promises?
By Jonathan E. Canis
Over the last two years, the FCC (www.fcc.gov) adopted major initiatives that promised great opportunities for CLECs.
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| Jonathan E. Canis Attorney at Law Kelly Drye & Warren LLP |
Early this year, the FCC adopted sweeping new rules for UNEs, establishing a whole new generation of high-capacity loop and transport UNEs, including dark fiber and SONET-speed OC-n elements. To date, however, these new UNEs are generally not available.
In the same order, the FCC also established rules governing combinations of UNEs, including the "enhanced extended link" or EEL loop/ transport combinations. Yet only a handful of EELs have been provisioned to CLECs so far.
Last year, the FCC established dramatic new collocation rules that dramatically increased the amount of collocation space available in ILEC COs, and dramatically reduced the cost of collocation. But recently, the FCC found that CLECs had encountered such unreasonable delays in obtaining collocation that the FCC was compelled to establish mandatory installation intervals.
Finally, amid much fanfare, Chairman William E. Kennard announced a fundamental change in the structure of the FCC, growing a small Enforcement Division into the Enforcement Bureau, which greatly increased the stature, staffing and resources of the enforcement function at the FCC. The inability for CLECs to implement the FCC's new rules, however, has raised serious doubts as to the effectiveness of the new bureau.
What happened? Are ILECs being allowed to ignore the FCC's rules with impunity? Is the much-lauded Enforcement Bureau a bust? The answers are yes and no, and the fault is the CLECs' as much as the ILECs'.
In many states, the new UNEs and some collocation rules have not been implemented because state regulators haven't set the rates for them (under the Telecommunications Act of 1996, the FCC makes the rules, but states set the rates). This is not entirely the fault of the state regulators, however--CLECs have not been adequately aggressive in getting their state commissions to initiate rate proceedings and to set interim rates in the meantime. If the states receive such petitions and ignore them, the FCC is empowered to step in and take over. But it can't do so unless CLECs push the issue.
Similarly, CLECs have been frustratingly slow to bring complaints to the FCC about ILEC refusals to provision EELs. The fact is CLECs have not aggressively been pursuing EELs, despite their unquestioned value in cutting CLEC costs.
As for the effectiveness of the FCC's Enforcement Bureau, the jury is still out. The bureau has been effective in mediating informal resolutions to disputes, but this process is not publicized, and CLECs are often unaware that it is available. Regarding the Formal Complaint and "Rocket Docket" complaint processes, some CLECs have rightfully argued that the FCC takes too long to process CLEC requests, and that the FCC has not been aggressive in assessing fines or other penalties when ILEC wrongdoing is discovered. Again, however, the FCC is only likely to take stronger action if pressed by CLECs.
Jonathan E. Canis writes a monthly column on regulatory issues. He can be reached at jcanis@kelleydrye.com.
