ABERNATHY EXPRESSES RESERVATIONS ABOUT NEXTEL PLAN
FCC Comr. Abernathy said Wed. she has some concern about a plan that would give Nextel spectrum at 1.9 GHz, along with doing in-band realignment, to fix public safety interference at 800 MHz. At a press breakfast, she said she has long favored the in-band realignment but would prefer that the solution not include spectrum outside the 800 MHz band. However, while her first choice would be an 800 MHz-only solution, she said she hasn’t “foreclosed” the idea of moving outside of the 800 MHz band, including to 1.9 GHz, if it’s deemed necessary.
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“The first choice is always handle it within the spectrum but it may not be possible,” she said. “A lot of folks are saying you have to look elsewhere and I'm listening to them and trying to understand the options,” she said: “Then you get into the question of valuations. We have to come up with some sort of reasonable valuation.” Abernathy said the 1.9 GHz move also raises some “litigation risk” because the Communications Act mandates auctions for such spectrum. Asked for a timeline, she said the Commission’s “intent” was to release an item on Nextel’s plan in April. A staff proposal circulating on the 8th floor would require Nextel to pay for public service relocations and make some additional payment to reflect the value of the 10 MHz of spectrum in the 1.9 GHz band (CD March 11 p7).
On another issue, Abernathy said she’s hopeful the agency will release a decision on AT&T’s VoIP petition as soon as next week. It’s very important to “clarify existing rules today” including whether VoIP calls that use the public switched network are liable for access charges, she said. “I've never been a fan of self-help.” AT&T has asked for a ruling on whether it needed to pay access charges for calls that go over its VoIP backbone but start and finish on public switched networks. Asked if she thought the agency would force AT&T to pay retroactively for access charges not paid while the petition is pending, Abernathy said she thought that should be treated as “an enforcement issue.”
Abernathy began the press breakfast with an outline of her views on the U.S. Appeals Court, D.C., decision vacating part of the FCC’s UNE rules and whether it should be appealed to the U.S. Supreme Court. She said she thought the decision was basically correct, wouldn’t hurt consumers or competition and shouldn’t be appealed. She said she agreed with the court that the Commission “crossed over” the line and shifted some of the FCC’s responsibilities to state utility commissions in the Triennial Review Order (TRO). There’s “clearly a role for states, a critical role in pricing,” she said. However, “we can’t have 50 separate unbundling regimes across the country. It doesn’t make sense.”
Abernathy said she was pleased the court upheld the other part of the TRO, broadband UNE deregulation, and warned that’s another reason for not appealing the court’s decision. The U.S. Supreme Court, when reviewing an order, looks at everything, not just the area vacated or remanded, and theoretically could revisit the broadband rules, she said. Abernathy said she wouldn’t want to see the broadband rules “jeopardized.” She said she “would rather take the [court] decision, figure out a rational new order and work with a transition.”
She said a transition away from UNE-P wouldn’t cause consumer disruption because no one envisioned a “flash cut” as a result of the court overturning UNE rules. (UNE-P is a combination of network UNEs, most significantly switching, loops and transport. The elimination of any of those elements as a TELRIC-priced UNE would eliminate UNE-P as an option for competitors. Switching is most commonly pushed for elimination by ILECs, which say competitors can easily get switching capability elsewhere.) Abernathy envisioned a “rolling” transition and said switching probably would remain on the UNE list in some areas of the country and in others competitors could negotiate with ILECs for use of their switches. CLECs also could follow a UNE-L regime in which they use their own switches and lease ILEC loops as UNEs. She said competitors often argue that ILEC hot cut processes aren’t good enough to support UNE-L but she called that a “flawed” presumption.