TECHNOLOGY EXPERTS EXPRESS UNCERTAINTY ABOUT FCC'S UNE ORDER

Engineers and technologists said the order, approved in Feb. but not released yet, discusses competitive access in terms that are hard to translate to real world networks. That raises fears that the order unintentionally could shut out competitors from using certain Bell network facilities because the definitions of what was accessible weren’t clear, the panelists said. The uncertainty is heightened by the fact that engineers have little guidance except news releases and statements by the commissioners, they said.

“Until the order comes out, we're not going to know what these buzzwords mean,” said Francisco Maella, El Paso Global Networks senior vp-network & technology. The language used by regulators and lawyers in Washington can be hard to put into practice in the real world, said Michael Gallagher, CEO of Fla. Digital Networks.

Intel Communications Policy Dir. Peter Pitsch said the FCC’s decision was patterned on a proposal by the High Tech Broadband Coalition (HTBC) that had worked to make sure its proposal didn’t keep CLECs from continuing their current services. “We have no ax to grind,” Pitsch said. Intel and the coalition are involved because “we want broadband to be widespread, high quality and affordable,” he said. He said one important point was that the Bells must maintain their copper wires until the FCC allowed them to retire the loops. He said that was designed to encourage “market-based deals” between the Bells and their competitors.

ALTS Gen. Counsel Jonathan Askin said most of Pitsch’s explanations made him relatively comfortable but he feared the FCC had voted for something less competitively neutral: “My concern is whether there is a disconnect between what the High Tech Broadband Coalition thinks it proposed and what comes out in the order.”

Because of the FCC’s last-min. changes in the order’s outline, “there may be inconsistencies and incoherence,” attorney Jon Canis, who represents CLECs, said. “Rules have to be clear, understood by parties who are at each others’ throats,” he said. He said the issue for CLECs appeared to be simple: Their most important priority was continued access to T-1 and T-3 loops using so-called TDM (Time Division Multiplex) technology. Canis said everyone involved with the order had said CLECs would continue to get that access but the terminology explaining how that would happen was inconsistent and confusing.

Distinctions between packet and nonpacketized capabilities and between TDM v. non-TDM plus promises that CLECs will continue to get what they have today are more confusing than clear, Canis said. For example, some of the things CLECs get today are facilities the FCC said would be deregulated, meaning CLECs wouldn’t have access, he said. In the confusion, he said, it’s not clear whether: (1) Some loops are TDM or non-TDM, such as primary rate interface ISDN or T-1 loops connecting to frame relay service. (2) Fiber connections to urban office buildings are classified as fiber-to-the-home. (3) Broadband deregulation applies only to mass market loops and how that term is defined.

Roscoe Young, ALTS chmn. and co-CEO of KMC Telecom, said “the lack of access to hybrid loops and line sharing is so dangerous to our members” that ALTS’ first objective is to overturn that part of the FCC order through the courts or legislation.

On another panel at the ALTS conference, CLEC and Bell representatives agreed it might be good for the FCC to drop the pick-and-choose rule, saying it might have deterred market-based agreements between them. The rule, which the FCC has said it may eliminate, requires that after a Bell company negotiates a contract with a CLEC, it must allow any other CLEC to opt into any part of that contract. Several panelists, including SBC Senior Vp Dorothy Attwood, Qwest Senior Vp Steve Davis and CLEC attorney Andy Lipman, agreed eliminating the rule could encourage more market-based agreements between the Bells and their competitors. The issue arose as panelists debated why universal service was such a difficult policy issue and why the industry couldn’t work out such issues without regulatory intervention. Before the Telecom Act, competing companies entered more agreements on their own but since then “the pick-and-choose rule may have been an impediment,” Lipman said. Davis said “I think we will see more negotiations” if the rule are eliminated. Covad CEO Charles Hoffman said “I'd rather have a long-term commercial agreement than be subject to the whim of the FCC” and state regulators.

Attwood and Lipman also said there was a need for more clarity from the FCC about its processes. Attwood, ex-FCC Wireline Bureau chief, said she had learned, now that she was in the private sector, how much outsiders relied on “smoke signals” to determine what the FCC was doing. Outsiders sometimes read things into actions by the Commission that, having been on the inside, she knows aren’t accurate indications of the agency’s processes, Attwood said. Making the agency’s operations “more transparent would help us all,” she said. Lipman called for the agency to eliminate ex parte rules that bar meetings by more than 2 commissioners at the same time. Such rules “Balkanize decisionmaking,” he said. Lipman also suggested that the Triennial Review was difficult for the Commission because it was just too big. Such a “multifaceted decision” is difficult to act upon, it said. It would be better to “break it up into smaller bits.”

Asked what panelists wanted the FCC to do in the pending broadband Internet access proceeding, Allegiance Telecom Senior Vp Larry Strickling, another ex-Wireline Bureau chief, said the agency should stop “torturing the Telecom Act, trying to stretch the Act to fit” the agency’s policy goals. The FCC is trying to “make something out of whole cloth” in its definitions in that proceeding, he said. Lipman said the Commission “can’t be a slave to semantics.” Terms such as information service and telecom service are “so pregnant with meaning,” Lipman said. The FCC should “try to preserve its flexibility and not shoehorn” things into inflexible definitions.

FCC Commissioners Speak Out at NARUC/NECA Conference

All of the commissioners now have made the “first round of edits” in the Triennial UNE Review order so the huge document, which another FCC official said had 800 pages, will be released in a “few weeks,” FCC Comr. Martin said late Tues. at the end of a broadband conference sponsored by NARUC and the National Exchange Carriers Assn. Martin and 3 other commissioners on the panel appeared at times slightly ill at ease as their different viewpoints arose. Comr. Copps referred to the broadband portion of the UNE order as the “dark side” of the document because it moved the Bell companies “closer to monopolization.” Comr. Abernathy referred to the same deregulatory part of the UNE order as a positive, saying “next-generation networks may never be built if incumbents have to turn them over [to competitors'] TELRIC prices.”

Other comments by commissioners: (1) Abernathy said the agency planned to make the UNE order as clear as possible to deter gaming and loopholes. (2) Copps complained that the agency hadn’t teed up a Sec. 706 report on advanced services to update the one issued 18 months ago. (3) Martin said the Triennial Review vote “involved courage,” particularly in deregulating broadband facilities. It was “a balanced approach” in which there was deregulation where competition existed from cable and continued regulation of UNEs where there wasn’t as much competition. (4) Martin and Comr. Adelstein lauded Verizon for announcing it would move forward on broadband investment. (5) Adelstein indicated some hesitancy to move broadband regulations toward Title 1, saying Title 1 was “so uncertain.” Using the Commission’s forbearance authority might be a better route to encourage broadband deployment, he said. (6) Abernathy said the UNE order was an example of a “lack of urgency” on the part of the govt. in issuing orders: “We should move items out. We should not talk them to death. It’s something we all have to work on.”