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United States Telecom Association v. FCC (2004)

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USTA v. FCC
x97
CourtUnited States Court of Appeals for the District of Columbia Circuit
Full case name United States Telecom Assocation v. Federal Communications Commission and United States of America
DecidedMarch 2, 2004
Citation359 F.3d 554, 561-62
Court membership
Judges sittingHarry T. Edwards, A. Raymond Randolph, Senior Circuit Judge Stephen F. Williams
Keywords
USTA FCC RBOCs ILEC CLEC

USTA v. FCC is the 2004 court case in which the Washington, D.C., Circuit Court of Appeals vacated the Federal Communication Commission's Triennial Review Order (TRO).The court's decision is based on the Telecommunications Act of 1996 section 251 which defines unbundled network elements (UNEs) for incumbent local exchange carriers and competitive local exchange carriers.[1]

Following the Court of Appeals' decision the FCC requested that the case be appealed to the Supreme Court of the United States. In June 2004 the solicitor general announced that a request for the Supreme Court to review the case would not be made. As a result of the solicitor general's decision the FCC would issue its Triennial Review Remand Order (TRRO) creating new rules and regulations for unbundled network elements.[2]

History

Triennial Review Remand Order (TRRO)

The Triennial Remand Order or TRRO was a response to the decision in USTA v. FCC in which the D.C. Circuit Court vacated many of the provision set forth in the original Triennial Review Order created in 2003 [2] . In a 3-2 vote along party lines, FCC Commissioners approved the Triennial Remand Order, which was officially adopted and enacted on February 4, 2005. The Triennial Remand Order among other things discussed high capacity loops, interoffice transport, mass market local circuit switching (UNE-P), and unbundled network elements (UNEs) all issues that had been discussed three times prior when trying to fulfill the sharing portion (Section 251) of the 1996 Telecommunications Act[3] . Though it was requested that the TRRO address and grant element access to wireless carriers, the FCC found that no wireless carrier could or would be impaired by not having access to landline network elements or UNEs[4] .


One of the key factors in including high capacity loops in the Triennial Remand Order is the fact that it was one of the few elements that the D.C. Circuit did not vacate in their order in USTA v. FCC. In the TRRO high capacity loops were readdressed and refined by the FCC to the point of saying that CLECs would be impaired without access to DS3 and DS1-capacity loops except in buildings and service areas with more than 60,000 lines. The FCC did make one new exception to the high capacity loop portion and that was that it found CLECs are not at a disadvantage without access to dark fiber loops in any instance and therefore removed that element from the list of things ILECs have to share[5] .


Similar to high-capacity loops the FCC in the TRRO reevaluated how interoffice competition could be made possible between CLECs and ILECs. In the revised order the FCC determined that CLECs would only be impaired, a measure in determining access, in cases of DS3 and DS1 capacity loops in businesses that had at least 24,000 business lines[2] . The numbers mentioned in the TRRO were important because the D.C. Circuit vacated many previous provisions by the FCC for lack of clear definitions and specific standards[6] .


When dealing with mass market local circuit switching the Triennial Remand Order and the FCC found that ILECs would no longer have an obligation to provide CLECs unbundled access to these network elements[2]. Mass market local circuit switching, which was considered part of the unbundled network elements (UNEs) platform included the unbundled loop, unbundled local circuit switching, and shared transport. The order to remove UNE platforms from the TRRO either forced many CLECs out of the long distance market or forced CLECs to design and create their own platforms[5].


For the first time the FCC used the Triennial Review Order to address the issue of broadband access loops and sharing for CLECs[7] . This portion of the order upset many ILECs companies as it forced them in certain situations to provide broadband access loop elements CLECs. Compared to previous FCC rulings that left a lot of decisions to individual state public utility commissions the FCC made a clear framework for the type of cases CLECs would need to present in order to access ILEC broadband access loops and prove that they would be severely impaired without it[8] . These elements today are different as many cable companies that provide broadband access are excluded from having to share their broadband elements and access points; a result of being considered an information service rather than a telecommunications service.


The Triennial Remand Order was the fourth time that the FCC had to rewrite its own rules to fulfill Section 251 of the 1996 Telecommunications Act[9] .In 2006 the D.C. Circuit rejected claims in Covad Communications Company et al. v. FCC, affirming the unbundling and sharing rules made by the FCC in the Triennial Remand Order [10]. The D.C. Circuit and many other courts have since reaffirmed the decision that CLECs have to provide and demonstrate that they would be competitively impaired in order to gain access to any of the remaining unbundled network elements[11] .

Ruling

Implications

References

  1. ^ United States Telecom Association, et al. v. FCC & USA (D.C. Cir. 2004)
  2. ^ a b c d "§ 251 Network Unbundling". Federal Communications Commission. Retrieved 2 February 2011. Cite error: The named reference "section251" was defined multiple times with different content (see the help page).
  3. ^ Kutais, B.G. (2006). Focus on the Internet. New York: Nova Publishers. pp. 8–10. ISBN 1-59033-978-9.
  4. ^ Hazlett, T.W. (2006). [http:// ezproxy.msu.edu/login?url=http://search.proquest.com/docview/213215565?accountid=12598 "Rivalrous Telecommuniucations Networks With and Without Mandatory Sharing"]. Federal Communications Law Journal. 3. 58 (477). Retrieved 16 April 2011. {{cite journal}}: Check |url= value (help)
  5. ^ a b Staff. "The FCC's Triennial Review Remand Order". Davis Wright Tremaine LLP. Retrieved 16 April 2011.
  6. ^ "Appeals Court Decision: Must The Industry Now Live With Current UNE Rules?". Telecom Policy Report. Retrieved 16 April 2011.
  7. ^ Sterling, Christopher H. (2006). Shaping American Telecommunications: A history of technology, policy, and economics. Mahwah, New Jersey: Psychology Press. pp. 290–310. ISBN 1-4106-1695-9.
  8. ^ "Unbundled DS1 Loop". AT&T CLEC Online. Retrieved 16 April 2011.
  9. ^ [www.oca.nh.gov/Docs/FCC-04-290A11.pdf "Federal Communications Commission FCC Review of Section 251"] (PDF). The Office of Consumer Advocate. Retrieved 16 April 2011. {{cite web}}: Check |url= value (help)
  10. ^ Drye, Keley (19 June 2006). "D.C. Circuit Affirms Triennial Review Remand Order". Telecommunications Practice Group. {{cite journal}}: |access-date= requires |url= (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)
  11. ^ "Triennial Review and UNE Proceedings". Federal Communications Commission. Retrieved 16 April 2011.



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