Order On Remand
Herein the FCC adopts new rules clarifying the "reasonably efficient carrier" standard for impairment previously adopted in the Triennial Review Order, and modifies the commission's application of the unbundling framework with respect to Dedicated Interoffice Transport, High-Capacity Loops, and Mass Market Local Circuit Switching access. The commission also adopts a 12-month plan for competing carriers to transition away from access to these three services where they are no longer considerd impaired.
View the FCC's Order On Remand
The FCC has responded to the Appellate Court's demand for a more "nuanced" approach to the impairment issue. The FCC's new rules will require every state commission to collect and analyze detailed, market-specific evidence concerning transport, switching and other UNEs.
View the FCC's February press release
Triennial Review Order
On August 21, 2003, the FCC issued the Order meant to implement the actions alluded to in its earlier press release.
Generally, the FCC's Triennial Review Order eliminates most unbundling requirements for broadband, making it easier for companies to invest in new equipment and deploy the high-speed services that consumers desire. The Commission has also made new decisions concerning the unbundling of other network elements that result in substantial changes to existing requirements, including a more granular analysis of unbundling requirements by the states when appropriate. All these decisions have been made in an effort to achieve three primary goals: (1) continuing the Commission’s implementation and enforcement of the 1996 Telecom Act’s market-opening requirements, (2) applying unbundling as Congress intended: with a recognition of the market barriers faced by new entrants as well as the societal costs of unbundling, (3) establishing a regulatory foundation that seeks to ensure that investment in telecommunications infrastructure will generate substantial, long-term benefits for all consumers.
The following is a (highly summarized) list of findings the FCC writes about in its Triennial Review Order.
(1) The Order reaffirms the previous interpretation of the statutory definition of the term “network element,” set forth in section 153(29) of the Act.
(2) A requesting carrier is impaired when lack of access to an incumbent LEC network element poses a barrier or barriers to entry, including operational and economic barriers, that are likely to make entry into a market uneconomic.
(3) The Order describes scale economies, sunk costs, first-mover advantages, absolute cost advantages, and barriers within the control of the ILEC as barriers to entry relevant to the impairment analysis and examines whether unbundling can address the impairment caused by these barriers.
(4) The FCC's impairment analysis prominently considers actual marketplace evidence, is granular in nature, and addresses the existence of implicit support flows.
(5) The Commission retains the interpretation of the “necessary” standard set forth in its UNE Remand Order.
(6) The Commission finds that giving states fact finding responsibilities is most appropriate where the record does not contain sufficiently granular information and the states are better positioned to gather and assess the necessary information.
(7) ILECs must offer unbundled access to stand-alone copper loops and subloops for the provision of narrowband and broadband services.
(8) ILECs do not have to provide unbundled access to the high frequency portion of their loops.
(9) ILECs are no longer required to unbundle OCn loops.
(10) ILECs must offer unbundled access to dark fiber loops, DS3 loops and DS1 loops.
(11) ILECs must offer unbundled access to subloops necessary to access wiring at or near a multiunit customer premises.
(12) ILECs must offer unbundled access to the NID on a stand alone basis to requesting carriers.
(13) The FCC redefines the dedicated transport network element as those transmission facilities that connect ILEC switches or wire centers. Specifically, it finds that requesting carriers are not impaired without access to unbundled OCn level transport. Further, it finds that requesting carriers are impaired without access to dark fiber, DS3, and DS1 transport.
(14) The Commission finds, that CLECs are not impaired without unbundled local circuit switching when serving the enterprise market.
(15) The Commission finds that competing carriers are impaired without unbundled local circuit switching when serving the mass market.
(16) ILECs must offer unbundled access to their OSS for qualifying services.
(17) CLECs may order new combinations of UNEs to the extent that the requested network elements are unbundled.
(18) ILECs are required to make routine network modifications to UNEs used by requesting carriers where the requested facility has already been constructed.
The FCC also addresses a number of "remaining issues," including 271, TELRIC, fresh look, a transition period, rule review, and the opening of a further notice of proposed rulemaking to seek comment on whether we should modify the Commission’s interpretation of section 252(i).
View the Commission's Triennial Review Order