BellSouth officials said Tues. they were concerned that the same ...

is doing a lot of the same things over again,” BellSouth Gen. Attorney Jonathan Banks said at a media briefing on the upcoming order. BellSouth Vp Herschel Abbott noted the pending order is the FCC’s 3rd attempt to make a decision on unbundled network elements that met judicial scrutiny. “The FCC has not yet issued an order that passed judicial muster with unbundled network elements,” he said. Banks said one of the biggest controversies was the presumption of impairment used for switching. In voting on the order in Feb., the FCC was 3-2 against eliminating switching from the national UNE list, which kept the UNE platform intact and gave state regulators authority to determine whether switching, or any other UNE, should be dropped. The order included a “presumption” that switches serving large businesses no longer had to be unbundled, but it gave states 90 days to rebut that national finding. The provision would include businesses served by high-capacity loops such as DS-1. The order also had a “presumption” that switches used for the mass market should remain unbundled unless states disagreed during a 9-month period. “The FCC appears as if they are going to order us to unbundle these things just presuming impairment but not finding it,” Banks said, and courts previously have held found that unbundling can’t be ordered without a finding of impairment. “If there’s no finding of impairment, ordering unbundling of switching for the mass markets is going to be plainly wrong and inconsistent with the D.C. Circuit and the Supreme Court,” he said. Another closely watched area is how the Commission defines “mass market” in the order, which appears to be taking up a definition different from previous ones, Banks said. Saying the FCC’s majority presumed impairment for the mass market and no impairment for large business, he said the FCC in the past drew the line for a big business at 4 or more lines. Referring to DS-1 level switching facilities, a new line would be drawn at 24 lines, he said. “It’s a far, far higher threshold than the 4-line cutoff that they used to use,” Banks said. “To expand the availability of switching to 4-line customers all the way up to 24-line customers seems to be exactly what the courts have said not to do.” He said the D.C. Circuit seemed to be saying that drawing the line at 4 was in itself too broad, meaning an expansion to 24 lines would create a problem if it were to resurface before the court. Even after the 9-month period in which states decide whether switching should remain a UNE, the order appears to keep intact a 3-year period during which switching would have to be supplied by incumbents at UNE rates, Banks said. He said that would be hard for the Commission to explain to the courts “since there’s no finding of impairment, in fact they've never legally found impairment in switching.” Another closely scrutinized area of the order is how the FCC directs the states to conduct proceedings on switching impairment, Banks said. One question is whether the Commission essentially is turning over impairment decisions to the states or is giving them a tight list that constrains what they do to simply implementing the FCC decision.