The U.S. Court of Appeals for the District of Columbia Circuit has vacated and remanded an FCC (www.fcc.gov) order that required ILECs to provide their competitors with access to their DSL-based advanced services.
The court rejected the FCC’s classification of DSL-based advanced services as either “telephone exchange” or "exchange access" service, which are subject to Section 251(c) of the Telecommunications Act of 1996.
Sec. 251 contains the act’s interconnection requirements. It says that, among other things, ILECs must “provide, to any requesting telecommunications carrier for the provision of a telecommunications service, non-discriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms and conditions that are just, reasonable and nondiscriminatory.”
The section also says that ILECs have a duty “to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers.”
Qwest Communications International Inc. (www.qwest.com) and WorldCom Inc. (www.wcom.com), for different reasons, had appealed the FCC's decision that ILECs' DSL services qualified for competitive access under Sec. 251.
While the appeals court vacated and remanded the FCC's classification of DSL-based advanced services as "telephone exchange service" or "exchange access," it denied Qwest's claim that ILECs can be subject to Sec. 251(c) duties only with respect to the provision of "telephone exchange service" or "exchange access.”
The court found that the FCC's reasoning in making the classification was based on an earlier decision that the court also had rejected when it remanded the FCC's reciprocal compensation order.
In that ruling, the court found fault with the FCC's classification of calls to ISPs terminated by LECs as "exchange access."
The appeals court issued its opinion in WorldCom v. FCC late April 20. Judges Stephen Williams, David Sentelle and Judith Rogers joined in the decision. The decision can be found online at: http://pacer.cadc.uscourts.gov/common/opinions/200104/00-1002a.txt.
