FCC Wireline Bureau Stresses Urgency of TRO Proceeding

Responding to a question about Bell companies’ alleged attempts to reprice UNEs at the state level during the “standstill” period, Bureau Chief Jeffrey Carlisle said he didn’t know whether the Bells were acting inconsistent with commitments they made the FCC -- but if competitors think so they should file formal complaints. As the staff works to meet the deadline for rewriting TRO rules, such allegations can be counter-productive without proof, he said. “The focus has to be the final rules. If we don’t get that job done, we run the risk of a court doing it,” Carlisle said. “The focus should be giving us realistic proposals.”

Asked what he would want if the Telecom Act were rewritten, Carlisle said the agency can’t call the shots but he would like to see an end to the “bipolar world” set up by the Act’s definitions of “telecommunications service” and “information service.” The definitions, which determine regulatory treatment, create problems because services have to be “one or the other.” With technology changing so much, “I think you need a more nuanced approach,” he said. As he has before, Carlisle said the agency is expected to move on VoIP jurisdictional issues before it completes the broader VoIP proceeding. “Jurisdictional issues are very pressing, given more states are poised to act” on VoIP, he said. The FCC “needs to provide some clarity to them and the industry,” he said.

Asked about intercarrier compensation, Assoc. Bureau Chief Jane Jackson emphasized that the plan offered by the inter-industry Intercarrier Compensation Forum isn’t necessarily taking the lead in bureau consideration: “ICF is not CALLS. It’s not the model I'm working off of.” She said while waiting for the ICF plan to surface, the bureau moved forward to begin developing its own plan. She said the bureau will incorporate the “thinking” reflected in several plans offered to the agency. “A lot of hard thinking by industry” is seen in those plans, she said. Asked about long-term suggestions for such pricing issues, Jackson said she believes after many years as a regulator that it’s nearly impossible to quantify costs and maybe price deregulation is best. Regulators continually try to set pricing rules but “you never know what is going to happen 3 years from now,” she said.

In answer to a question about how best to deal with the bureau, Jackson said people ought to keep a better eye on the ex parte filings made by others. She said she often sees “things that are not answered and should be.” She also recommended that lobbyists provide legal analysis for their proposals. Parties sometimes offer “beautiful policy” plans that the bureau isn’t sure can be explained legally, she said.

Carlisle said companies won’t get far basing arguments on self-interest, as in “this is bad for my company, don’t do it.” Instead they should explain how to devise a workable plan for all and why it’s legal, he said. He also urged companies to respond to data requests: “We ask for the data because we think you have it. We don’t.” Proceedings can go the wrong way for a party that doesn’t provide the information needed, he said. Finally, he said, companies shouldn’t “try to get everything,” taking the position “this is what we want and we won’t give in.” That “doesn’t give anyone any where to go,” he said.

“It would be great if parties didn’t save the best arguments for the commissioners,” said Jackson. The practice not only is “frustrating” but also can make orders “hard to sustain in court,” she said. “Orders would be better if [the bureau] had the opportunity to work with the best facts, the most sophisticated legal arguments,” she said. Carlisle said that because of the tight timeframes, a company “planning to save the best argument for November… is not going to get it in the TRO order.”