USTelecom: CLECs Distort FCC Leeway To Reregulate Special Access
USTelecom disputed CLEC assertions that the FCC has broad latitude to reimpose regulation on ILEC special-access business services (see 1509100050). A recent letter from Birch Communications, BT Americas and Level 3 "distorts the scope of the agency's discretion, which is…
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constrained by the Communications Act, the Administrative Procedure Act, and the Commission's own decisions, and mischaracterizes the level of deference that courts typically afford agencies under Chevron," USTelecom said in a filing posted Friday in docket 05-25. The CLECs seek reregulation "of enterprise broadband services such as Ethernet and increased regulation of ILEC special access" services given pricing flexibility some time ago, USTelecom said. The commission "cannot upend forbearance and other deregulatory decisions with little or no data analysis" and must address ILEC deregulatory "reliance interests" built up over the years, the ILEC trade group said. "The FCC cannot step in and set prices without a fact-specific, full and fair analysis of the competitive landscape," USTelecom said. "Nor would the FCC be entitled to deference from the courts if it takes the procedural shortcuts suggested [by CLECs]." USTelecom said that the record doesn't support the CLEC relief, and it added: "The Joint CLEC Letter, at bottom, suggests that the FCC can aim low, that close enough for government work will survive court review. But the standard is higher, and the FCC must take into account the full record in the special access proceeding, including the data collection to the extent that it is sufficient and reliable. It must also take into account more recent information that further demonstrates robust competition in the marketplace." Separately, TDS Telecom said its CLEC subsidiaries are struggling to deliver retail services to business customers. "These difficulties are due in large part to challenges in obtaining competitive wholesale pricing for last mile access facilities," TDS said in a filing that attached confidential cost data. And TransWorld Network objected to FCC release of its confidential business data subject to a protective order, noting it still had concerns about the specific purposes that parties might have in seeking to review its data.