FCC has clarified that it hasn’t taken ‘definitive’ position that...

filed by Commission with 2nd U.S. Appeals Court, N.Y., in City of White Plains v. TCG suggested that ROW fee requirements that exceeded cost recovery violated Sec. 253. In letter to Kenneth Fellman, chmn. of Commission’s State & Local Govt. Advisory Committee (LSGAC), FCC Gen. Counsel Jane Mago said agency was involved in case to express its position that “costs imposed on new entrants, but not incumbents, are not ‘competitively neutral and nondiscriminatory’ under Sec. 253(c) of the Communications Act.” Footnote in brief was not intended to “represent a definitive FCC position that Sec. 253 precludes any compensation above cost recovery,” she said. As for LSGAC’s suggestion that Commission either withdraw brief or at least “offending” footnote, Mago said while agency was concerned that “others” were misrepresenting language of brief, “we believe that the best approach to dealing with this problem is to allow the brief to remain filed with the court as written.” She said Commission had taken care to avoid taking firm position on revenue-based fees and when parties reviewed it they would see that that was case. If Commission were to withdraw brief or footnote, “we believe that action could similarly be misconstrued,” she said. Attorney Nick Miller, who represents members on LSGAC, said: “The General Counsel’s letter puts to rest the big lie many of the industry advocates have been telling legislators, regulators and courts around the country.” He said “big lie” was that FCC has taken stand on this ROW compensation issue.