AT&T, SBC reps differ on TRO implications

Industry insiders disagreed whether state commissions’ labor-intensive efforts to comply with the Triennial Review Order will be moot after an appeals court indicated it would strip states of the authority to decide whether incumbent carriers must provide unbundled network elements to competitors.

Three state commissions chose to suspend TRO proceedings after learning of the U.S. Court of Appeals for the District of Columbia Circuit judges’ pointed statements opposing the FCC’s delegation of UNE authority during oral arguments on Jan. 28. Such decisions are mistakes, because the fact-finding efforts in the proceeding are valuable, according to Bob Nelson, Michigan PSC member.

"Regardless what the court rules, someone has to make a decision," Nelson said during a conference sponsored by Communications Daily and State Telephone Regulation Report. "If we can’t make a decision, the FCC will need to make a decision…In that case, the need for the state record being developed will be more important" so the FCC has the data necessary to make decisions.

Richard Rubin, AT&T’s vice president of law and government affairs, said he believes the states provide the only venue capable of providing the kind of "granular" analysis the D.C. circuit mandated from the FCC in a 2002 decision. Rubin noted that state reviews are "much more detailed and probative" than similar efforts by the FCC.

"I don’t think there’s any other reasonable way to do it," Rubin said.

Dorothy Attwood, SBC’s senior vice president of regulatory strategy, disagreed, stating her belief that the FCC has the resources to make a UNE decision based on a "record that has been made over and over" and that the 1996 Telecom Act calls for the FCC to make such decisions.

"I give all kinds of respect to state commissions for setting schedules and keeping on them," she said. "That does not mean that we think it should be in this process to begin with."

Indeed, the work effort of most state commissions was one of the few areas of agreement shared by the three speakers. Another point of consensus was that any decision rendered will be litigated—a reality that serves as an argument in support of the FCC making UNE decisions, Attwood said.

"Everything that is done in telecom is going to get appealed," she said. The possibility for multiple appeals of each state UNE decision is not consistent with the goals of the Telecom Act, Attwood said.