The new FCC all-or-nothing rule adopted last week (CD July 9 p3) ...

to the text released Wed. One reason is that commercial agreements came under scrutiny after the Commission launched the further NPRM revising its interpretation of Sec. 252(i), we were told. The order will apply to all effective interconnection agreements, including those approved and in effect before the date the new rule goes into effect, the Commission said in the order, which will become effective 30 days after publication in the Federal Register. The new rules will equally apply to arbitrated and negotiated agreements, the FCC said. It found that Sec. 252(i) did “not differentiate between negotiated and arbitrated agreements.” It said the primary purpose of Sec. 252(i) was to prevent discrimination, and in the context of arbitrated interconnection agreements, requesting carriers were “protected from discrimination primarily by the arbitration process itself. Continuing to apply the pick- and-choose rule to arbitrated agreements, therefore, is an overly broad means of fulfilling the statutory purpose of protecting against discrimination.” Moreover, the Commission said, maintaining separate regimes for negotiated and arbitrated agreements would be difficult to administer. It stressed, however, that “parties are under a statutory obligation to negotiate in good faith.” The FCC also concluded in the order that it “does indeed have the legal authority” to reinterpret Sec. 252(i). Specifically, it said Congress hadn’t directly addressed the degree to which interconnection, service or network element provisions from a state-approved interconnection agreement must be made available to other requesting carriers. “We reach this conclusion because the plain meaning of the section’s text gives rise to 2 different, reasonable interpretations, and because the Supreme Court expressly recognized that the Commission has leeway to reinterpret section 252(i),” the order said. It also said the language in Sec. 252(i) didn’t limit the Commission to a single construction. On another issue raised by the competitive industry, the FCC said it found that Sec. 252(i) was “ambiguous” from the Supreme Court’s decision in AT&T v. Iowa Utilities Board, which, it said, held that the Commission had the expertise to determine a reasonable interpretation of Sec. 252(i). Several competitors had argued the Commission shouldn’t eliminate its pick-and-choose rule, which according to the Supreme Court “tracks the pertinent language almost exactly,” and is the “most readily apparent reading.” Comr. Copps, who dissented on the order, has also pointed at the highest court pronouncement, saying “this is a strong stuff for a Commission whose policy pronouncements do not always pass muster with the courts of land.” But the FCC said in the order the Supreme Court “did not hold that the Commission’s current interpretation of section 252(i) is compelled by the statute.” It said the Supreme Court had “routinely recognized that government agencies have discretion to change interpretations of ambiguous statutes, and that an agency is not stopped from changing its view.” The Commission also said “the order does not take a position on any issue outside the scope of the FNPRM.” Several parties participating in the proceeding have asked the Commission to address issues beyond those raised in the FNPRM. For example, Verizon has asked for a declaration that agreements governing network elements no longer subject to mandatory unbundling aren’t subject to Sec. 252(i) or the pick-and-choose rule; Birch has proposed structural separation of ILECs into wholesale and retail operations; and T-Mobile has urged the Commission to adopt a procedure for federal arbitration of national interconnection agreements. Those issues weren’t addressed in the order.