FCC declined Fri. to preempt Mo. law (HB 620) that prohibits political subdivisions such as municipalities from providing telecom services or facilities, concluding that term “entity” in Sec. 253(a) of Communications Act wasn’t intended to include political subdivisions of state but rather appeared to prohibit restrictions on market entry that apply to independent entities subject to state regulation. Acting on preemption petition filed by Mo. Assn. of Municipal Utilities, City Utilities of Springfield and others, Commission said that if municipally owned utility sought to provide telecom service or facility as independent corporate entity that was separate from state, “we could reach a different result under Section 252(a).” Mo. municipalities argued that even if Commission were correct in concluding that Congress didn’t clearly intend to include municipalities that didn’t own and operate electric utilities within scope of Sec. 253, Congress did clearly intend term “any entity” to apply to power companies owned by municipalities. As it found in Texas Preemption Order, FCC said, “any entity” was not intended to include political subdivisions of state. Commission urged states to refrain from enacting absolute prohibitions on ability of municipal entities to provide telecom service. Municipally owned utilities have potential to become major competitors in telecom industry, it said, and their entry could further goal of Act to bring benefits of competition to all Americans, particularly those living in small or rural communities. As for concerns of taxpayer protection from economic risks of entry and possible regulatory bias that municipalities’ entry raise, Commission said such issues could be dealt with successfully through measures that were much less restrictive than outright ban on entry. For instance, there could be nondiscrimination requirements that require municipal entity to operate in manner that’s separate from municipality, “thereby permitting consumers to reap the benefits of increased competition.” FCC also rejected municipalities’ contention that even if municipally owned utilities were political subdivisions of state, legislative history of Sec. 253 (a) demonstrated that Congress clearly intended “any entity” to cover municipal electric utilities. “Other than indicating that municipal energy utilities may make their facilities available to carriers, the legislative history that the petitioners cite does not distinguish between publicly owned and privately owned utilities,” Commission said. In joint statement, FCC Chmn. Kennard and Comr. Tristani said they voted reluctantly to preempt petition because they believed “HB- 620 effectively eliminates municipally owned utilities as a promising class of local communications competitors in Missouri.” Commission was constrained in authority to preempt by decision by U.S. Appeals Court, D.C., City of Abilene, and U.S. Supreme Court’s decision in Gregory v. Ashcroft, they said. Referring to letters from many members of Congress that said it was intent of Congress when it enacted Sec. 253 to enable any entity, regardless of form of ownership or control, to enter telecom market, they urged Congress to consider amending language in section to clearly address municipally owned entities. In separate statement, Comr. Ness urges states to adopt less restrictive measures, such as separation or nondiscriminatory requirements, to protect utility ratepayers or address any perceived unfair competitive advantage.

U.S. Appeals Court, D.C., ruling Tues. that rejected SBC’s advanced services subsidiary (CD Jan 10 p1) appeared to have raised more questions than it answered. Observers questioned Wed. whether decision might pressure Congress to revise Telecom Act to account for advanced services, how ruling would affect similar arrangement at Verizon and how it might play out under new Republican FCC. Court overturned trade-off FCC made with SBC: FCC allowed SBC to provide advanced services free of interconnection requirements if company formed separate affiliate to provide those services. In response to appeal filed by Assn. of Communications Enterprises (ASCENT), court ruled FCC didn’t have authority to forgo interconnection requirements of Sec. 251(c) just because SBC was providing advanced, rather than basic, services and using separate subsidiary. ASCENT represents competitive carriers, particularly those that resale ILEC service.

Citing U.S. World Trade Organization (WTO) promises, former Commerce Secy. and U.S. Trade Representative Mickey Kantor urged FCC to approve license transfers for proposed $34-billion VoiceStream-Deutsche Telekom merger. VoiceStream submitted Kantor statement before close of comment period on merger Mon. “This FCC proceeding is about more than the acquisition of a U.S. common carrier by a foreign company,” he said. “It is a test of the United States’ compliance with binding international legal obligations which were negotiated and entered into in good faith.” In acting on VoiceStream-DT application, FCC must move in way that’s consistent with U.S. obligations under WTO Basic Telecom Agreement (BTA), he said. “Failure to do so could invite initiation of a WTO dispute settlement action against the U.S. government and would establish for other WTO members an unwelcome precedent of noncompliance,” Kantor said. He warned that scope of sanctions under General Agreement on Trade in Services (GATS) wasn’t limited to sector in which violation was found. That means, Kantor said, that if U.S. were found to have violated GATS, “it could be liable for trade sanctions in any sector.” Also, if U.S. were to act in way that indicated backtracking on trade commitments, it could damage its negotiating power in current talks, such as GATS services negotiations, he said. FCC shouldn’t restrict access to U.S. telecom market “based on market conditions in other countries that do not affect competition in the United States,” he said. Binding U.S. commitments under BTA don’t hinge on other countries’ implementation of their own duties, he said. In other reply comments, Organization for International Investment rebutted concerns raised by Sen. Hollings (D-S.C.) and DT competitors such as Global TeleSystems and Novaxess. Hollings, ranking Democrat on Senate Commerce Committee, last month had renewed his call to FCC to reject application, underlining his opposition to telecom assets bought by companies with majority foreign govt. investment (CD Dec 18 p6). In other comments, Siemens advocated approval of merger, saying it would increase U.S. telephony competition. Transaction still awaits approvals of Dept. of Justice, FCC and Committee on Foreign Interests in U.S.

AT&T shares closed at $22.50, up 12.15% after news that it’s stock was upgraded to strong buy by Morgan Stanley from neutral in report issued Tues. Morgan Stanley, saying it saw better times ahead for AT&T, established 12-month target price of $35 for company, saying stock now was worth $35-$40 per share after falling 66% in 2000, with AT&T Wireless continuing to show strong growth. AT&T cable prospects also were seen as positive. Morgan Stanley remained cautious on long distance business, figuring valuation at zero at current stock price despite generating estimated $15 billion in earnings before interest, taxes, depreciation and amortization (EBITDA) this year, citing company’s debt load of $60 billion. Brokerage said break-up of company would act as performance catalyst over next several months. It also said plan to distribute rest of AT&T Wireless to shareholders plus aggressive asset disposal program should prove beneficial. While acknowledging AT&T’s “challenging” credit position, Morgan Stanley identified its steps to improve situation such as raising nearly $10 billion from NTT DoCoMo, completing $25 billion debt facility, cutting dividend 83%. It said outlook for 4th quarter foresaw AT&T Wireless “looking good,” adding 850,000 subscribers and generating $2.596 billion in revenue, up 38.2% from a year ago. Beyond 4th quarter, broadband IPO outlook still was seen as problem, with regulatory hurdles to overcome and improvement needed in operating and financial metrics. Cable revenue was expected to grow 9-9.5% on pro forma basis in quarter and 10.5-11% in year, including Comcast swap. By end of year, Morgan Stanley said it expected AT&T Broadband digital penetration of 18.5%, largest digital footprint in U.S., with 1.15 million high-speed data subscribers, 550,000-570,000 residential telephony customers and almost 10% penetration, with revenue of $70 million anticipated. AT&T Broadband capital expenditure this year is expected to be robust. AT&T is to release 4th quarter earnings in week of Jan. 29.

As FCC readies long-anticipated inquiry into unifying carrier compensation methods, telecom industry appears less than united on how -- or even whether -- it should be done. FCC official said at news briefing Mon. that if Commission approved Notice of Inquiry proposed by Common Carrier Bureau, it would open proceeding that probably would take “several years.” Some industry representatives have urged agency to begin proceeding, saying it doesn’t make sense economically to have so many disparate intercarrier compensation methods. But others question value of rationalizing those different plans such as access charges, reciprocal compensation and various forms of wireless interconnection charges.

LAS VEGAS -- FCC Comr. Powell endorsed free market vs. govt. regulation, pleasing consumer electronics officials at the CES here Sat. But reaction was more muted when he also indicated reluctance for govt. to move aggressively to spur DTV transition. Powell, who is widely rumored to become next chmn. of FCC, was interviewed one-on-one by CEA Pres. Gary Shapiro, also rumored to be candidate for position in new Bush Administration, despite recently signing new 10-year contract with CEA.

In defiant response to AT&T Broadband’s request for waiver of franchise fees on cable modem service (CD Jan 3 p3), Lakewood City, Cal., warned company that withholding payment of franchise fee “will jeopardize your franchise or subject you to penalties.” Accusing AT&T of misstating federal policy in its letter requesting waiver, Asst. City Mgr. Michael Stover said city should neither agree to waive franchise fees nor indemnify AT&T against various potential costs. “We expect AT&T Broadband to continue to pay all required franchise fees, including those based on cable modem service revenue,” city said. Referring to AT&T’s contention that it passed through franchise fee on cable-delivered Internet service to subscribers under federal law, he said Telecom Act “only permits cable operators to pass through increases in franchise fees on regulated cable service rates. Federal law does not authorize or otherwise address the ability of cable operators to pass through franchise fees on cable modem and other services.” Although federal law allows cable operators to include line item on subscriber bills indicating amount assessed as franchise fee, Stover said including line item was “entirely different concept” than passing through those costs to subscribers. In City of Dallas v. FCC, 5th U.S. Appeals Court, New Orleans, “made it clear that, even when such a line item is included on subscriber bills, franchise fee are imposed upon cable operators, not on subscribers,” he said. As for concerns raised by AT&T over potential class action lawsuits, he said that since franchise fees were paid by AT&T and not subscribers, there were no fees collected from subscribers that could be refunded. “This imaginary exposure to litigation is not a legitimate basis for not paying the required franchise fees.” However, Stover proposed 2 options to allay AT&T concerns about potential litigation: (1) Refrain from itemizing franchise fees on cable modem service because federal law doesn’t require such action. Doing so won’t reduce amount company can collect from subscribers “because you can essentially set your rates at any level you choose.” (2) Agree, as alternative, to pay 5% telecom franchise fee on cable modem service. That appears to be consistent with 9th U.S. Appeals Court, San Francisco, ruling classifying cable modem service as telecom service, he said.

With FCC overdue to act on reciprocal compensation, Bell companies and CLECs competed Wed. to present their positions to Commission and news media just in case agency schedules vote on issue at its Jan. 11 agenda meeting. If item is placed on next week’s agenda, all lobbying will have to stop tonight (Jan. 4) under agency’s “sunshine” rules. FCC hasn’t said whether it will take up reciprocal compensation at meeting, but it originally planned to vote on issue by year’s end and then deal with broader proceeding on intercarrier compensation soon afterward. “It’s ripe for decision,” industry source said.