FCC PROPOSES PERFORMANCE MEASURES FOR SPECIAL ACCESS

FCC didn’t propose specific performance measurements, instead asked for comment on appropriateness of using parts of existing measurements or proposals such as: (1) Measures developed by state commissions in N.Y. and Tex. (2) Proposals from several carriers. (3) Measurements and standards proposed for UNEs in companion NPRM. Comments are due 30 days after NPRM is published in Federal Register.

Special access NPRM seeks comment on whether adoption of performance measurements and standards for special access services would help ensure that those services “are provisioned in a just, reasonable and nondiscriminatory manner.” Agency asked what measures should be implemented, how they should be enforced and how frequently they should be reviewed. NPRM asked, for starters, whether such regulation was even needed “in light of the current marketplace conditions.” It said competitors complained of unfair market power being exerted by ILECs but incumbents said special access services were provided competitively and measurements “could reduce customer choice or otherwise distort the competitive operation of the marketplace.” FCC also asked whether it should refrain from requiring performance measurements on portions of ILEC special access circuits that had received pricing flexibility.

If standards were adopted, agency asked whether it should impose monetary fines for failure to comply with them and, if so, “what the appropriate amounts should be.” NPRM asked for comment on “feasibility of adopting a self- effectuating liquidated damages rule” similar to what had been adopted in some states. Under such rule, failure to comply with standards “would result in automatic payments to competitors.” Commission asked for comment on: (1) What role state commissions could play in enforcing whatever rules FCC might adopt. “Several states have determined that they lack authority to regulate the incumbent’s provisioning of such services,” the NPRM said. (2) Whether small, rural or midsized ILECs should be subject to measurements or whether rules should be modified “to take into account these carriers’ resources and concerns.” (3) Whether sunset provisions should be included, either “date certain” or “specific trigger event.”

New NPRM incorporates records of several proceedings relating to how well ILECs provide special access, including petition filed by AT&T Oct. 30 asking agency to adopt performance measures for special access. “According to AT&T, incumbent LECs discriminate in favor of themselves and their retail customers in provisioning these services and subject their carrier-customers to poor quality and delays,” FCC said in NPRM. Also incorporated in new rulemaking are: (1) 1999 U S West petition asking FCC to preempt special access proceedings AT&T brought before several state commissions. AT&T had asked state commissions to set standards and remedies for providing special access. (2) ALTS petition in May 2000 asking for “self-executing monetary penalties” for not properly providing special access circuits. (3) Issues raised in “nonaccounting safeguards” proceeding. (4) Pertinent issues raised in Nov. 2000 notice seeking comment on “biennial review service quality reporting requirements.”

CompTel praised performance measurement plan but urged FCC to include mandatory reporting requirements, “strong federal enforcement component” and “speedy recovery of damages suffered by carriers.” AT&T said it was “encouraged” that FCC was looking into special access measurements for ILECs because “special access is absolutely critical in offering competing telecommunications services [and yet] the Bells’ performance in making these circuits available is woefully lacking.”