“The 4th try is a charm,” the U.S. Appeals Court, D.C., said Fri., upholding a 4th FCC bid to carry out Telecom Act unbundling provisions. Ruling in Covad v. FCC, the court rejected various challenges to the Feb. 2005 FCC order limiting competitor access to Bells’ high capacity facilities based on tests of whether competitors would be “impaired” without such access. Known as the Triennial Review Remand Order, the FCC decision also dropped mass-market switching from the list of unbundled network elements (UNEs) available to competitors under the Total Element Long Run Incremental Cost (TELRIC) rules that formed the basis for the prices competitive telephone companies pay to use portions of the Bell’s networks. Elimination of switching as a UNE essentially eliminated the UNE platform as a vehicle for low-cost entry as a Bell competitor -- a major factor in the court battle.nnIn an opinion by Judge David Sentelle, the court disagreed with competitive carrier arguments that they’re “universally impaired” unless they have unbundled access to high-capacity DS-1 and DS-3 facilities. Competitive local exchange carriers (CLECs) sought nationwide unbundling of DS-1 loops, a blanket action earlier court rulings denied, Sentelle said. The Telecom Act requires some “limiting standard,” he said. The FCC order “reasonably” rejected a nationwide rule, Sentelle wrote: “The FCC adopted a nuanced standard which... uses market data to predict when and where the CLECs will be economically able to deploy their own high-speed facilities.” “We think this balancing act is reasonable,” Sentelle said. Of CLECs’ challenge to FCC elimination of switching as a UNE, the court said FCC data showed mass market switching was competitive and “the CLECs failed to offer any... contrary evidence.”
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