Thirty seven telecommunications companies have asked the FCC to require SBC Communications Inc. and Verizon Communications Inc. to continue opening their networks to competitors under disputed regulations.
In a petition filed with the commission, the companies allege SBC and Verizon must continue opening their networks to competitors under so-called unbundled network element (UNE) obligations because they agreed to such provisions as a condition of merger agreements with Ameritech and GTE, respectively.
The companies have asked the FCC to issue a declaratory ruling directing SBC and Verizon to continue complying with their merger obligations until they prove to the commission the obligations have been terminated.
The FCC declined comment, but the commission is likely to solicit public comments on the petition and make a decision around the same time it releases final unbundling rules governing wholesale access to the networks controlled by BellSouth Corp., Qwest Communications International Inc., SBC and Verizon.
SBC maintains the merger obligations expired after the U.S. Supreme Court declined to review FCC rules the U.S. Court of Appeals for the District of Columbia Circuit rejected in 2002. Under SBC’s merger agreement with Ameritech, unbundling obligations requiring the company to open its network to competitors shall become null and void after the date of a final and non-appealable FCC ruling in the so-called UNE remand order.
“The D.C. Circuit vacated the UNE remand order in USTA I and the Supreme Court denied cert. Thus, there has been a final, non-appealable [order] in the UNE remand proceeding,” says SBC spokesman Mike Balmoris.
Verizon spokesman Larry Plumb also says Verizon’s merger obligations to provide UNEs to competitors ceased March 24, 2003 when the Supreme Court declined to review FCC rules the appeals court vacated.
“At that moment the D.C. Circuit's first order became final and non-appealable. The FCC has interpreted Verizon's merger condition in the same way,” he says.
Competitors assert SBC and Verizon are still subject to the merger conditions because the FCC has never released undisputed unbundling rules since President Clinton signed into law the Telecommunications Act of 1996.
“A vacated decision is not an order at all, and is certainly not ‘final’ given that the court of appeals remanded it to the commission for further consideration,” according to the petition filed with the FCC.
The commission released new unbundling rules last year, but the U.S. Court of Appeals for the District of Columbia Circuit also rejected those regulations in March.
Last month the commission released temporary rules that would freeze for six months the wholesale rates incumbent phone companies such as SBC and Verizon are authorized to charge competitors for access to their networks.
Claiming the rules blatantly ignored the previous order from the same court, Qwest, Verizon and the United States Telecom Association have asked the court to reject the regulations.
The FCC must file comments with the court by Thursday.
