NASUCA Says ILECs Should Have to Offer CLECs Access to Dark Fiber

The National Association of State Utility Consumer Advocates asked the FCC to approve a request by Maine’s Public Utilities Commission that incumbent carriers be required to offer competitive local exchange carriers access to dark fiber and line sharing. The carriers that have led the opposition, including AT&T, Verizon and Fairpoint, kept it up in reply comments. The Independent Telephone & Telecommunications Alliance said Maine’s request would work against the extension of high-speed access sought by the National Broadband Plan. At issue in the proceeding is whether Section 271(c)(2)(B) of the Telecom Act requires incumbent carriers to provide access to elements including dark fiber loops, dark fiber transport and dark fiber entrance facilities.

The initial comments brought few surprises, NASUCA said. “Understandably, comments were filed opposing the Maine Petition by the companies … which would be required to provide” the elements “to their competitors if the Petition were granted,” the association said. “Equally understandably, comments were filed supporting the Petition by competitors that would use the facilities required to be provided. A review of the Petition and the comments shows the competitors to have the better part of the argument."

NASUCA disputed many contentions by the ILECs. “AT&T and Verizon argue that the plain terms” of the Telecom Act “do not extend to dark fiber or line sharing,” the group said. “AT&T even asserts that Commission has never even suggested that dark fiber or line sharing are included in Checklist items 4 or 5.” Competitors “correctly disagree,” the association said

The Maine PUC’s request is at odds with the National Broadband Plan, ITTA countered. “The imposition of unbundling requirements will result in disincentives for network investment on the parts of both incumbents and competitors,” it said. “ITTA urges the Commission to incorporate its prior findings and refrain from imposing requirements that are inapposite to widely-embraced goals of ubiquitous deployment of new advanced networks. The Commission’s restraint will encourage investment and deployment, and lead more readily to the fulfillment of National broadband goals."

"The Commission should be loath to adopt a reading of Section 271(c)(2)(B) that would effectively expand the scope of that section beyond its plain meaning,” Fairpoint Communications argued. AT&T said it had “explained in its initial comments that requiring the Bell Operating Companies to offer competitive local exchange carriers access to dark fiber and line sharing under [Sect. 271] would be contrary to the plain language of the statute, this Commission’s precedent, and sound public policy.” A&T added, “A few competitive LECs have tried to argue the contrary in this proceeding, but their comments lack merit and are unpersuasive.” Forcing ILECs to offer dark fiber facilities to competitors isn’t in the public interest, regardless of any interpretation of the Telecom Act, AT&T said. “Requiring BOCs to provide access to the next-generation facilities in their networks, such as dark fiber … would discourage competitive LECs from building the very facilities that the Commission is trying to encourage them to invest in."

The FCC made clear more than a decade ago that the commission should resolve disputes over whether incumbents are meeting their Section 271 obligations, said USTelecom. “Nonetheless, competitive providers have regularly sought to end-run the Commission’s authority by selectively appealing to state commissions for interpretations of section 271 that are squarely at odds with Commission orders. As with the current dispute, those efforts have been consistently struck down by the federal courts.”