In oral argument Wed., U.S. Appeals Court, D.C., wrestled with qu...

were working their way through courts and remand process. Some arguments centered on whether DSL-based advanced services should be subject to same unbundling services that ILECs face under Sec. 251(c) of Telecom Act. One apparent area of agreement was that based on same court’s action last year vacating reciprocal compensation order, remand to FCC should have been sought for related issues in order on DSL traffic. In earlier ruling, court cited confusion on definition of ISP traffic, whether it was telephone exchange service, exchange access or 3rd category. In that decision, court remanded ruling, saying FCC hadn’t provided satisfactory explanation of why LECs that terminated calls to ISPs weren’t properly seen as terminating local telecom traffic and why such traffic was exchange access rather than telephone exchange access. On Wed., court heard separate appeals filed by Qwest and WorldCom on advanced services order released by FCC in 1999. WorldCom argued that Commission incorrectly concluded DSL ISP- bound traffic was exchange access and not telephone exchange access. It cited reciprocal compensation ruling last year that held that ISPs didn’t connect to local exchanges for purpose of origination or termination of telephone toll services. “These things are tripping over each other,” FCC attorney John Ingle acknowledged to court Wed. “We think in hindsight we should have asked for a 2nd remand. We do at some level have some embarrassment. We probably should have done that.” Judges David Sentelle, Stephen Williams and Judith Rogers heard arguments. WorldCom attorney Darryl Bradford urged court not simply to remand order but to vacate it. Qwest attorney Jonathan Frankel said Telecom Act didn’t change fact that different rules applied to different services. Unbundling requirements of Sec. 251(c) should apply to LEC based on specific service being offered, not all services that particular classification of telecom carriers offered, he said. Otherwise, “it turns 251(c) into a ball and chain that incumbents carry with them into every new market they enter,” Frankel said. Referring to what he called “fearmongering” in FCC’s brief, he said: “This appeal is about how DSL will be regulated, not whether it will be.” WorldCom arguments hinged on DSL ISP-bound traffic’s being telephone exchange service, not exchange access. Telecom Act forecloses conclusion that ISPs connect to local exchanges for purpose of origination or termination of telephone toll services, WorldCom said. Darryl Bradford, attorney for WorldCom, told court that ISPs provide information service and aren’t telecom providers that are connecting to local exchanges to terminate traffic.