FCC INTERIM UNE ORDER BOGS DOWN ON POSSIBLE CHANGES
The release of the FCC’s interim UNE order appears to be hung up by lack of movement on a possible companion order that would deal with DS-1, line sharing and other issues not addressed in the original document, we're told. The latest estimate is that the interim order won’t be released until at least the end of next week, but much depends on FCC Chmn. Powell’s effort to seek changes to it through a reconsideration order. If there were such changes, the 2 orders probably would be released together, sources said.
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The FCC on July 21 voted 3-2 to approve the interim order (CD July 23 p4) but the actual document hasn’t been released. Meantime, Powell reportedly has been considering a reconsideration order that would address some remaining hot issues such as treatment of DS-1 loops, transport and line sharing. The Commission reportedly is considering, as one alternative, declaring that without UNE status for DS-1 loops, CLECs would be “impaired” nationwide. UNE status means CLECs can lease the elements under lower-cost TELRIC pricing. There’s also been talk of extending the deadline for line sharing UNEs beyond the current Oct. 1 date. The goal would be to make the line sharing transition parallel to the 6-month standstill order in the interim UNE order, officials said.
Powell last week invited Comrs. Adelstein and Copps, who dissented when the vote on the interim order was taken, to discuss possible changes to the order that would make them more comfortable. However, sources said no movement has occurred yet toward such an agreement. Each side reportedly is waiting for movement from the other, although one source said Powell forwarded some language on DS-1 loops to the other 2 commissioners this week. “We're in limbo,” said one FCC insider. “It’s kind of a stalemate,” said an industry lobbyist. The so-called sua sponte reconsideration order, meaning one initiated by the FCC, would have to be voted on by all 5 commissioners.
The stalemate on discussing reconsideration issues has raised concerns by both CLECs and ILECs about the resulting delay in releasing the interim order, which sets out rules to guide competitive interconnection while final rules are being written. One CLEC attorney has even filed a Freedom of Information Act request asking to look at the still-unreleased interim order. Some observers expect Powell to give up soon on releasing the 2 orders as a package. Although Powell reportedly would like to see them released together, the agency legally has 30 days after the original order’s release to issue an agency- initiated reconsideration. Adding to the complications, sources said ruling on DS-1 in a separate item could fuel a legal challenge by the Bells. One source said the delay alone fuels a possible mandamus complaint by the Bells to the U.S. Appeals Court, D.C., which ordered the FCC in March to write new UNE rules: “Every passing day, the Bells have a stronger argument to the court.”
Powell wanted to “engage” Copps and Adelstein on issues he knew they cared about -- areas such as high capacity loops and transport that are important to facilities-based carriers, a source at the FCC said. The chairman, who was surprised by the dissenting votes by Copps and Adelstein, also knew the 2 Democrats were concerned about line sharing so that’s also being discussed, the source said. A specific reconsideration item is expected to be on the table within a matter of days, the source said. The interim order probably won’t languish beyond the end of next week, whether or not a reconsideration order is agreed upon, the source said.