A work in progress

Incumbents hoping for 271 approval must rely on their own guile to expedite the process.

Last week, the FCC acknowledged what most in the telecommunications industry already knew: The process RBOCs have had to endure to enter long-distance markets is a giant headache.

To remedy the situation, the FCC's Common Carrier Bureau is attempting to streamline the filing process without diminishing the burden of proof placed on incumbent LECs, which must demonstrate that they have opened their local markets to competition in accordance with Section 271 of the Telecommunications Act of 1996.

The FCC now allows long-distance applicants to conduct multistate tests of their operations support systems (OSSs) and to apply data gathered for one state's application to other states in its region — a technique called “piggybacking.” The bureau outlined these and other procedural changes in a public notice issued on March 23.

By making the process more efficient, the agency hopes to accelerate the rate of long-distance approvals from the snail-like pace that has netted just four approvals in the five years since the Telecom Act's passage.

It may also save a few trees.

“Some of these applications are accompanied by 40 to 50 boxes of material,” a bureau official said. “[It]… used to be that the RBOCs had to file an entire copy of the state proceeding; some of these state proceedings have gone on for two to three years. That's a lot of paper.”

The procedural change represents a common-sense approach to a vexing problem, according to Ed Young, senior vice president of federal government relations for Verizon Communications, which has gained long-distance approval in New York but has been rebuffed in Massachusetts to date.

“The way the Bell companies have operated in the past is that they grouped states together because of some regional affinity,” he said. “For example, the New England states operationally have been tied together, so they have the same support systems and all the same procedures. Consequently, there's no point to conducting four separate tests or reviews of something of a general nature like that.”

A proponent of piggybacking, Young would also like to see the various gatekeepers agree on a common set of metrics.

“It would be nice if the FCC, the states and the Department of Justice could say, ‘While you can measure millions of things, here are the 20 to 30 key measurements that we're going to look at to determine whether your markets are open,’” Young said. “If we could get to that point, then you really could streamline the process. But I think we're a long way away from that point.”

Until it happens, incumbents hoping for 271 approval must rely on their own guile to expedite the process. Qwest, which is trying to re-enter the long-distance game after being forced to divest that aspect of its business when it merged with U S West, is banking on multistate testing of its OSS.

Besides the procedural efficiencies it offers, this approach also helps to standardize the company's OSS, which is beneficial to the CLECs that ultimately have to depend on it, said Pat Quinn, Qwest's vice president of policy and law.

“Multistate testing is a good way to answer all the questions at the same time. What you really want to have is consistency over your 14 states so that a CLEC operating in Minnesota or Utah knows how to operate and get the facilities out of our company that they need to compete,” he said.

Bill Whyman, president of industry research firm Precursor Group, agrees that multistate testing makes sense — to a point.

“If you tell me that you're going to multitest for 40 states, I would say, ‘No way,’” he said. “But on a more limited, regional basis, it makes sense. Getting together like this is nothing new for the states. They do it all the time on tax issues. It's a way of sharing regulatory expertise and sharing the cost.”

Even though multistate OSS tests and piggybacking of information are designed to make the application approval process more efficient for both the RBOCs and the FCC, they are not intended to circumvent the process, said Saralee Boteler, spokeswoman for federal regulatory affairs for SBC.

SBC successfully piggybacked data from its Texas application to accelerate the approvals it received in Kansas and Oklahoma, the first time the commission allowed a “me-too” application.

“We still have a checklist and we still have performance measures,” she said. “Even though it approved the joint application, which was actually two separate applications filed as one, the burden was still on the FCC — and on us, frankly — to ensure that there was a separate and independent showing of compliance in each state.”

The Common Carrier Bureau official agreed, adding that intrinsic safeguards assure that nothing untoward occurs.

“The third-party testers that are performing these tests are doing so in accordance with certain guidelines,” she said. “They swear under oath that they have performed these tests under these guidelines. And remember, these work papers are put into the record. Everything the FCC does is public and transparent, so we think something like that would come to light and their professional lives would be at stake.”

In the end, the bureau's new 271 guidelines are similar to what occurs in thousands of courts across the country every day, according to Bob Lane, senior telecommunications analyst for The Yankee Group.

“You have these long legal cases that go on for sometimes a year, and when that happens, the lawyers write a brief where they bring together all the facts they think makes their case. Basically, the legal brief then becomes the focus of the case.”