DOZENS OF LOBBYISTS DESCEND ON FCC TO PUSH UNE COMPROMISES

Much of discussion with commissioners this week centered on recent proposals offering compromises or new approaches such as: (1) NARUC’s proposal to clarify state-federal authority (CD Feb 10 p7). (2) Compromise plan by SBC, joined by several CLECs, on treatment of enhanced extended links (EELs). (3) Qwest proposal for LATA-based test to determine whether switching should remain on UNE list (CD Jan 31 p4). “Something is going on,” said lobbyist who speculated that compromise finally was on way although it still was difficult to determine what final product would look like.

NARUC has collected several endorsements for its plan, from consumer groups, AT&T, WorldCom, other CLECs. NARUC Gen. Counsel Brad Ramsay said as of Thurs. NARUC proposal, “with minor changes,” was still central focus of discussions with commissioners and their staffs. He said he was “cautiously optimistic” it would form part of FCC’s order. NARUC Pres. David Svanda of Mich. PSC, who spent Thurs. visiting every commissioner’s office, said he was “hearing greater support” for plan. Bells, however, argued NARUC plan was “illegal” because Telecom Act gave main responsibility to FCC and NARUC plan would give too much to state regulators. Svanda said he expected there would be “combinations and modifications” of current plans before FCC voted next week. For example, there may be modifications of the zone concept on which NARUC plan is based, he said. “Our ability to measure granularity is clearly developed and will be part [of plan],” he said.

Letter to FCC Thurs. from Consumer Federation of America, Consumers Union and Media Access Project said NARUC plan was “a reasonable framework for addressing the availability of [UNEs] while preserving an environment that promotes competition and protects consumers.” CFA Research Dir. Mark Cooper said letter “underscores our view that the FCC should not restrict the ability of state regulators to fulfill their congressionally assigned role of keeping local markets open and wholesale prices fair and reasonable.”

WorldCom in letter sent Wed. said NARUC proposal “differs in certain respects from WorldCom’s position” but offered “reasonable compromise.” It said NARUC approach would enable state commissions to conduct “granular” analysis required by U.S. Appeals Court, D.C., in May, 2002, remand. “Deferring the impairment analysis to the states for those elements as to which the Commission is unable to make a national impairment finding is directly responsive to the… court’s repeated and emphatic affirmation of the need for a granular analysis.” WorldCom also argued that NARUC’s use of zones as basis for impairment tests was better than LATA- based system proposed by Qwest.

Verizon sent letter to FCC Wed. saying it disagreed with SBC’s EELs proposal because it would let some carriers use EELs for nonlocal service, which now is barred. Proposal, made last week by SBC, NuVox and Cbeyond, “constructively endorses the safe harbor standards regarding the availability of [EELs],” Verizon said. However, it also proposed “an alternative safe harbor test for ’smaller’ carriers that does not examine the use of particular facilities and, consequently, would impermissibly ensure the use of EELs for the provision of nonlocal service.” SBC and 2 CLECs told FCC its proposal intended to eliminate “the impasse between ILECs and CLECs on whether and how to adjust the EEL safe harbor mechanisms.”

Verizon also raised concerns about NARUC plan, saying both proposals “move away from true accommodation of competing interests in this proceeding.” In case of NARUC plan, it should be “rejected on both procedural and substantive grounds,” Verizon said. Among problems with NARUC plan, it said: “The proposal would require the Commission to abrogate its statutory role to determine what elements must be unbundled and instead would assign that role to state regulators.” BellSouth told Comr. Martin same thing in visit Wed., filing ex parte notice saying company representatives explained NARUC proposal “would not withstand judicial scrutiny” because it shifted responsibility for carrying out “necessary and impair” test from FCC to state regulators.

Among themselves, telecom observers continued to discuss rift between FCC Chmn. Powell and Comr. Martin, with veterans saying they rarely had seen such animosity. Former FCC official who no longer is involved in UNE issue said past FCC chairmen also had been faced with lack of agreement among commissioners of their same party. He said, however, Powell had been more “autocratic” than past chairmen and encouraged such public disputes by not giving commissioners enough involvement in developing draft plans. Wireline Bureau reportedly had offered more-moderate draft plan than what eventually surfaced, according to another source. Powell sent that version back to bureau. Martin staff member said commissioner starting last year made clear his views on state issues, which didn’t agree with Powell’s. Despite Martin’s denials, “it sure looks like a power grab to me,” another lobbyist said.

Wall St. Journal criticized both Powell and Martin in editorial Thurs. for letting personal feud deter telecom policy. Paper said it was odd that blame lay “on 2 attractive young comers in the Republican Party, whose differences are said to be mostly personal and acrimonious.” Paper said “by their refusal to agree,” Martin and Powell “have only strengthened Democratic efforts… to keep the Bells running in place mostly out of archaic regulatory reflex.”

Because of new security rules at FCC, lobbyists were escorted to upper floors in groups of 20 as others milled around first floor elevator area waiting for next transport. “You see everyone over there,” said CLEC lobbyist.