ORLANDO -- Panel of Washington insiders told CEOs of competitive telecom companies here Mon. that they must become more involved in lobbying against Bell-sponsored data LATA relief because there was better chance than ever that such legislation could pass. Speaking at CompTel’s annual convention, panelists came close to pleading with competitive entrepreneurs, who traditionally are less likely than Bell CEOs to get involved in policy issues. They warned that their businesses could be at stake; that House, at least, was likely to pass data deregulation legislation this session and that Bells were very good lobbyists. “You need to make clear why this legislation could be a danger to this industry,” said Gary Slaiman, Washington attorney and former aide to Senate Judiciary Committee. Earl Comstock, Washington lawyer and former legislative counsel to Sen. Stevens (R-Alaska), told group, “Bell CEOs are engaged, they come to Washington. Your industry CEOs don’t often come to Washington and you have a complicated message.”

ORLANDO -- In highly animated panel discussion at CompTel annual conference Tues., representatives of CLECs, long distance companies, Bell companies and FCC debated whether CLECs had right to charge higher than average access rates and whether long distance companies could refuse to pay those rates. FCC Common Carrier Bureau Chief Dorothy Attwood said Commission had teed up issue by asking for comments but hadn’t decided whether it should step in or let industries settle it themselves. She said there seemed to be industry agreement that Commission should require long distance providers to serve CLEC customers if CLEC access charges fell below certain amount. Dispute is over what upper limit should be.

Verizon Wireless was among telecom carriers filing petitions for reconsideration last week on FCC’s building access order that lets building owners require relocation of network demarcation without getting approval of subscribers. Verizon Wireless contended order shouldn’t apply to commercial mobile radio service (CMRS) operators because their location of transmitters in multitenant environments didn’t raise same type of anticompetitive concerns that order addressed. “Because CMRS providers cannot affect competition by entering into exclusive access arrangements with building owners,” it said, there’s no credible reason to extend provisions of order to CMRS operators. CMRS providers generally don’t require access to building space or wiring to provide wireless service to tenants in building, Verizon said. Real Access Alliance contended FCC decision was mistaken on: (1) Role of building owners in development of facilities-based competition. (2) Scope of FCC’s authority to expand Over-the-Air- Reception Devices (OTARD) rule to include antennas used to receive and transmit data and voice communications. (3) Agency’s authority to interpret Sec. 224 of Communications Act to apply to facilities and rights inside buildings. “Building owners fall outside the Commission’s jurisdiction,” Alliance said. “The Commission concedes as much in the further notice of proposed rulemaking released with the orders, which seeks to achieve the CLECs’ goals by regulating carriers rather than property owners.” On narrower grounds, Wireless Communications Assn. (WCA) filed petition for partial reconsideration, asking FCC to clarify that safety exception of rule applied “to any professional installation requirements adopted by nonfederal authorities for subscriber premises fixed wireless transceivers that are protected by the rule.” WCA said exception prohibited “safety-related” antenna restrictions that would impair installation of subscriber premises fixed wireless antennas unless they met certain caveats, such as being nondiscriminatory. Triton Network Systems said that although it believed FCC properly expanded OTARD rule, it appeared “to have unintentionally excluded certain fixed wireless devices that should be appropriately covered.” Triton asked agency to clarify that restrictions weren’t designed to exclude certain fixed wireless devices deployed in consecutive point networks. Smart Buildings Policy Project also asked limited reconsideration.

Dept. of Defense (DoD) and wireless industry remain apart on some technical issues regarding how bands occupied by military users could be altered for 3rd-generation uses. Govt. and industry officials, at meeting hosted by NTIA Thurs., emphasized that analyses of bands that could be used for additional 3G spectrum were continuing, with final FCC and NTIA reports due late next month. “We still have a lot of work to do,” Motorola’s Steve Sharkey said. “We have at least an idea of where the paths to move forward are.” Meanwhile, Congressional Budget Office (CBO) raised budget projections for proceeds from FCC spectrum auctions through 2007, with rosier outlook attributed to interest in 3G.

Original C-block bidder Airadigm is awaiting answer to petition for reinstatement of its PCS licenses, which FCC cancelled after carrier missed payment after entering bankruptcy in July 1999. Petition still is pending before agency nearly one month from oral argument before U.S. Appeals Court, D.C., March 15 in litigation involving NextWave, bankrupt C-block bidder that also had its licenses cancelled for nonpayment. Airadigm has pointed out that only similarity between it and NextWave is that both are C-block bidders that entered Chapter 11 protection and missed installment payment for licenses. Because of disparities such as fact that Airadigm is offering service and NextWave isn’t, question is whether 2 carriers potentially could be treated differently by Commission. Proceeding raises complex web of legal issues for FCC, making outcome uncertain, industry observers said. At press time, item on Airadigm petition wasn’t yet circulating on 8th floor. Meanwhile, group of large carriers asked Commission to put off Airadigm decision longer, citing how circumstances had changed since NextWave litigation began.

Cox’s action in continuing to collect franchise fees on cable modem service in jurisdictions outside 9th U.S. Appeals Court, San Francisco, has been challenged in suit by 2 Va. customers in U.S. Dist. Court, Roanoke. MSO has notified communities in 9th Circuit jurisdiction that it will stop collecting franchise fees on high- speed Internet service, citing court ruling classifying cable modem service as telecom offering. Forcing only customers in states outside 9th Circuit to pay franchise fee is “unjust” and “unreasonable,” said plaintiffs Kimberly and William Bova, who are seeking class action status. By exempting subscribers in Ariz., Cal., Ida. and Nev. from franchise fees, Cox gave those customers “unreasonable preference or advantage,” plaintiffs said, and all franchise fees levied by company were unlawful charges, “entitling customers to a refund.” They alleged that Cox previously took position that its service was cable to avoid FCC regulation under Title 2, but reversed its position after 9th Circuit decision. “Cox appears to adopt contradictory positions regarding the classification of cable modem service as part of a relentless effort to avoid any government regulation for its own financial benefit at the expense of its customers,” they said. Although Cox acknowledges that cable modem service is telecom service in certain areas, it refuses to comply with laws protecting customers such as rate filing laws. Question of law and facts raised by plaintiffs include: (1) Whether Cox violated Title 2 of Communications Act. (2) Whether Cox could continue to impose franchise fee on cable modem service in other states after discontinuing it in 9th Circuit jurisdiction. (3) Whether Cox’s monthly subscription rates, which included franchise fee on cable modem service, were just and reasonable.

Reflecting on Telecom Act progress after 5 years, FCC Comr. Ness said Thurs. she hoped Commission would “hold firm in our view” that it’s only after Bell companies have met statutory requirements such as cost-based pricing that they are allowed to enter long distance. She spoke to reporters at press breakfast one day after AT&T Chmn. Michael Armstrong suggested in National Press Club speech that long distance carriers were having so much trouble breaking into local markets it might not be worth effort (CD Feb 8 p7). He raised concerns such as inability to lease unbundled network elements at reasonable prices. Chmn. Powell this week also told reporters he didn’t think “deregulation is like the dessert” served only as reward for creation of competition. Asked about Armstrong warning that AT&T might exit markets where it offers local service, Ness said his frustration appeared to stem from pricing regime set on state-by-state basis. “I do think we need to look at some pricing issues, particularly together with our colleagues in the states,” Ness said, noting issue had emerged in conjunction with Bell long distance applications in Mass. and Okla. “We need to have prices that are forward-looking, that are consistent with the requirements of the Act,” Ness said. “We ought to be looking together with the states on what the best practices are.” She said “sustainable” competition has to be based on both cost-based measurements and efficient applications. Asked whether she expected Powell-led FCC to take less activist turn, Ness disputed “notion that all issues here are decided on partisan grounds.” Telecom issues historically are framed along lines of arguments that are more sympathetic to incumbents “versus those more sympathetic to the arguments of the insurgents,” she said. In other policy areas, Ness said she anticipated Commission would move forward on reciprocal compensation and related intercarrier compensation issues shortly. “I am hoping that we will address both of those pieces in the next few weeks,” she said. On wireless spectrum cap, which FCC is re-examining, Ness said it was time to assess purpose of cap. She said she also hoped that service providers with wireless licenses would “do everything in their powers to use spectrum more efficiently.”

Verizon shouldn’t be allowed to enter Mass. long distance market because Mass. Dept. of Telecom & Energy (MDTE) hasn’t set permanent rates for unbundled network elements (UNEs) based on forward-looking TELRIC (total element long-run incremental cost) methodology, Mass. Attorney Gen. said in comments to FCC Feb. 6. Filing said rates didn’t meet one of Telecom Act’s checklist requirements. It also said that until MDTE can review Verizon’s performance assurance plan (PAP), filed Jan. 30, there was no proof that Verizon wasn’t discriminating against its data competitors in favor of its separate affiliate. Attorney Gen. said Verizon’s PAP didn’t include enough DSL performance measures to assure compliance with Act. Filing said DSL competition in Mass. was dwindling, making need to monitor and remedy poor DSL performance greater to ensure consumers have choices.

Debating success or failure of Telecom Act (see separate story, this issue) is no academic matter in Congress, where several proposals would make significant changes. Most prominent include 2 heavily pushed by House Commerce Committee Chmn. Tauzin (R-La.): Loosening restrictions on Bell companies’ offering data services across long distance LATA lines and adding restrictions on FCC’s handling of merger reviews. While both have received great deal of support in theory, we're told both still face considerable difficulty winning passage this year.

If communications lobbyists could go back in time and rewrite Telecom Act, Bell companies would be first to grab their pens, with broadcasters close behind, according to interviews by staff of Communications Daily. We asked industry representatives, Capitol Hill officials and others what they would change if they could rewrite Act with benefit of 5 years’ hindsight. Cable representatives appeared least likely to want change, having won deregulation, capital and entry into telecom business through Act. Views of CLEC interests ranged from structural separation for Bell companies to stricter enforcement.