FCC Adopts Revised Unbundling Rules in TRO Remand Order
Today the FCC approved new network unbundling rules. The FCC’s action comes in response to the D.C. Circuit’s review, and rejection, of many portions of the FCC’s previous UNE rules established in the Triennial Review Order (“TRO”).
The full FCC order has not yet been released. However, the Commission’s news release indicates that the FCC has taken the following actions:
- The FCC further modified its "impairment" standard in an attempt to conform to the D.C. Circuit’s view of the proper way to determine when a CLEC is “impaired” without access to unbundled network elements. The FCC’s new impairment standard apparently includes the use of "inferences" regarding the prospects of competition in one market based upon competition in other markets. The precise ramifications of this new impairment standard are not yet clear, but it will likely be used as a justification to deny CLECs access to unbundled facilities in certain markets even where alternative facilities are not available. Alternatively, CLECs will benefit from the FCC’s decision to decline to find that special access is a default replacement for unbundled loops and transport.
- Unbundled transport:
- Unbundled access to DS1 transport is retained, but is not available on routes connecting wire centers "where both wire centers contain at least 4 fiber-based collocators or at least 38,000 business access lines."
- Unbundled access to DS3 transport is retained, but is not available on routes where both wire centers contain 3 fiber-based collocators or 24,000 business lines.
- Entrance facilities are no longer available on an unbundled basis.
- Unbundled loops:
- Access to DS3 loops retained, but is not available where 4 fiber-based collocators and 38,000 business lines exist.
- Access to DS1 loops retained, but is not available where 4 fiber-based collocators and 60,000 business lines exist.
- Dark fiber loops are no longer available on an unbundled basis.
* Note that the test for access to unbundled loops is a conjunctive test, whereby both elements of the test must be met in order to deny CLECs access to the unbundled element. This differs from the disjunctive test the FCC will use for unbundled transport, which requires the existence of either a certain number of fiber based collocators or a certain number of business access lines.
- Mass market switching:
- ILECs are no longer required to make available mass market local circuit switching.
- Transition period from current unbundling obligations:
- UNE-P: Is no longer available, but the elimination of these rules will be subject to a longer transition period (into early 2006) according to the separate statement of Chairman Powell.
- Existing unbundling obligations for other elements will be phased out under a 12-month, or 18-month plan, depending on specific element.
We anticipate that ILEC reaction to this decision will range from insistence upon immediate compliance with the FCC's news release to more measured responses from those still struggling with UNE amendment proceedings before state commissions. Additional details concerning the FCC’s decision will follow this Update, as they become available. In the meantime, please contact us with any questions you may have regarding this latest development.