A federal appeals court upheld lower court findings that the Flor...
A federal appeals court upheld lower court findings that the Florida Public Service Commission incorrectly interpreted FCC Triennial Review orders when it barred commingling of Section 271 unbundled network elements with Section 251 UNEs. The U.S. Court of Appeals…
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for the 11th Circuit in Atlanta was ruling on an interconnection dispute between AT&T and Xpedius Communications that centered on the commingling issue. The PSC in April 2006 ruled commingling of Section 251 UNEs with other wholesale offerings was okay unless the commingling involved UNEs provided under Section 271. The PSC and AT&T argued the FCC’s deletion of a commingling clause in the TRO indicated the FCC didn’t approve of commingling Section 251 and 271 UNEs, and that commingling these UNEs would recreate UNE platform services that the FCC explicitly terminated. AT&T also argued the Section 271 UNEs were no longer wholesale services as defined in the Telecom Act. The 11th Circuit (Case 07-13028) ruled the deleted clause at issue here was removed to avoid confusion between the Section 251 unbundling obligations on all incumbent telcos and the Section 271 unbundling imposed only on Bell companies. The court said other parts of the Triennial Review orders clearly indicated the FCC’s intent to allow commingling of all wholesale services. The court said there was no evidence to suggest that Section 271 UNEs were anything other than wholesale services, and said FCC and state regulations supported classifying them as wholesale. The court also said commingling 252 and 271 UNEs wouldn’t recreate UNE-P service because wholesale rates for the 271 UNEs are deregulated. The court said the original UNE-P service included cost-based regulated rates for all the components, but now only the Section 251 UNEs would be at cost-based rates.