Can the new Federal Communications Commission (FCC) do the right thing by competitive providers? Well, on Aug. 8, it came close by releasing an order establishing rules to govern the collocation of CLEC equipment in ILEC central offices.
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The new rules are masterful, showing a complete appreciation of the needs of competitive carriers for interconnection to the ubiquitous ILEC local network. Among other things, the FCC (www.fcc. gov) found that competitors can collocate "multifunction" equipment that processes voice, data and Internet services. This ensures that competitive service providers can deploy the most exciting new generation of telecom equipment, thereby enjoying considerable cost economies and technical efficiencies.
Equally important, the FCC required ILECs to provide connections between collocated CLECs. This means that competitive local service providers can use ILEC central offices as to interconnect with competitive providers of interoffice transport. The ruling is absolutely critical to the development of a robustly competitive transport market, and it will result in significantly lower transport costs for full-service CLECs.
A perfect order? So close, but no. Buried in the 52-page order is a single sentence that could dilute the benefits conferred by the new rules significantly. It says: "As has been the practice in the past, we anticipate that cross-connect disputes, like other interconnection-related disputes, can be addressed in the first instance at the state level."
What that means is: "We just gave you some great new rules, but if the ILECs refuse to implement them, you may be required to engage in endless litigation in every state in which you do business to enforce them. This could take a year or two. Good luck, now go get 'em."
Why did the FCC come so tantalizingly close to giving competitors what they need, only to adopt an enforcement policy that may make implementation of the rules costly and dilatory? It appears the FCC doesn't want to get involved in the trench warfare that usually is entailed in enforcing new rules.
As those of us who have fought the local competition wars of the last decade know only too well, establishing the rules is only a beginning--the interpretation and enforcement of the rules is the hard part. Just ask any competitor that has tried to get an EEL deployed during the past two years, or who spent years in litigation before it could collect reciprocal compensation payments or access charges.
This outcome is clearly not in synch with an FCC that, before Congress and in the press, has professed its intent to vigorously enforce the Telecommunications Act of 1996. Moreover, the outcome constitutes a kind of "unfunded mandate" in which the federal government makes the rules, and then requires the states to bear the considerable costs of implementing them. This is the arrogation of authority without any corresponding responsibility. It cannot be the outcome consciously intended by the commissioners, and I hope they will reconsider this aspect of an otherwise perfect order.
Jon Canis writes a monthly column on regulatory issues. He is an attorney with Kelley Drye & Warren LLP (www. kelleydrye.com), and can be reached at jcanis@kelleydrye.com or (202) 955-9664.
