USTA challenges Triennial Review order

The U.S. Telecom Association this morning filed an appeal of the FCC’s Triennial Review order with the U.S. Court of Appeals for the District of Columbia Circuit.

USTA President and CEO Walter McCormick said in a statement today that the FCC “left consumers and the nation’s economy in the lurch,” with the controversial order that keeps in place a system that “distorts the market” and retards innovation. McCormick added that federal courts twice have instructed the FCC to “fix these rules,” but instead the commission “still hasn’t solved the problem.”

“As a result, today, we are forced to ask the courts to again intervene and to compel the FCC to get the job done right,” McCormick said.

While the order released incumbents of their obligations to unbundle fiber-to-the-home and hybrid (copper to the customers’ premises and fiber to the central office) loops and phased out line sharing, it maintained the obligation to unbundled switching pending state commission review. The FCC identified several triggers that must be met before a state commission can declare that no impairment exists in a given market.

Specifically, incumbents will not be required to provide UNE switching in markets where at least three unaffiliated competitive carriers are serving mass market customers with their own switches, or in markets where switching capable of serving mass market customers is available from at least two wholesale providers. However, the order gives state commissions the discretion to declare that no impairment exists in markets that don’t meet these criteria, in circumstances where the state commission determines the requesting competitive carrier is capable of installing its own switch, based on economic criteria defined by the FCC.

That wasn’t good enough for USTA and the Bell companies, which last week filed petitions with the D.C Circuit seeking a stay of the order on the grounds that the FCC failed to enforce the Telecom Act as interpreted by the Supreme Court and federal appeals courts. Moreover, the FCC had failed to set a national telecom policy “with clear directions and reasonable limitations on the states,” McCormick said.

The Competitive Telecommunications Association attacked USTA and the Bells for this maneuver. According to CompTel President Russell Frisby, the FCC acted, just not in the way USTA and the Bells wanted. “They’re making a specious legal argument,” Frisby said. “It’s one thing to say that you disagree with the order–there are parts of the order we don’t agree with. But it’s another thing to say the commission didn’t act at all.”