Competitive carriers and their advocates have a wish list for the new FCC chairman, and it’s a long one. Among the desired changes: revamp the ex parte process; reform the proposed rulemaking process and take reconsideration petitions seriously; and walk softly when it comes to establishing rules surrounding broadband grants, because far-reaching unintended consequences could arise.
Those were some of the ideas pitched by panelists at COMPTEL’s “Hot Topics at the FCC” session, just moments after news broke that President Obama has nominated Julius Genachowski as FCC chairman.
The timing couldn’t have been better, given the challenges facing CLECs and the hope that Genachowski will treat them more fairly than did his predecessor, Kevin Martin. A good start, “Hot Topics” panelists suggested, would be to enforce the rules on ex parte filings. Ex partes are letters that state when a company met with an FCC commissioner or staff, why, who attended and what was discussed. That last part is a bone of contention between CLECs and RBOCs – CLECs say incumbents leave out important details and rarely, if ever, notify other parties that the meeting even took place.
In fact, few people would know most ex partes were filed unless they searched the FCC site daily, like Genny Morelli, partner at Kelley, Drye and Warren LLP. That’s because many ex parte filings, filled with crucial information, are made at a proceeding’s eleventh hour, she said.
“That doesn’t make for the type of reasoned decision-making where everybody has a full opportunity for full participation,” Morelli said. “I’d actually outlaw the ex parte process except in very limited situations.”
Another opportunity for change would come from revising the notice of proposed rulemaking (NPRM) process, said economist and panel moderator Joe Gillan. Along with that, the FCC needs to seriously consider requests for reconsideration. The commission has tended to bury opposition to decisions it’s made and let those reconsideration documents languish for years, rather than addressing them.
“The new chairman is going to have a job of dealing with these issues and processes at the FCC,” Gillan said.
Perhaps beyond all of that, however, is the question of how new momentum toward a national broadband policy will impact the industry in the long- and short-term. For example, there could be some particularly cumbersome implications for intercarrier compensation reform. When the government hands out money to carriers, the FCC will have to devise “obligations that are contractual requirements,” Gillan explained. So, since most ILECs are likely to integrate government-funded facilities into their existing networks, how might that impact intercarrier compensation methodology? There are no immediate or easy answers; as Gillan said, unintended consequences could be, and ought to be, part of a broader debate.
But first things first, and that includes the FCC helping the National Telecommunications & Information Administration (NTIA) set rules for the companies that receive some of the $7.2 billion in stimulus money meant for broadband buildouts. The NTIA is supposed to have all of the funds committed by Sept. 30, 2010, said Morelli, “so they’re going to have to start handing out money pretty quickly.”
And if providers don’t like the conditions attached to the grants and loans, they probably should consider using Universal Service Fund money instead, said Bill Magness, partner at Casey Gentz & Magness in Texas.
Still, said Bill Hunt, vice president of public policy for Level 3 Communications Inc., that could work well.
“Maybe broadband becomes the driver that makes [regulators] address intercarrier compensation reform,” he said.
