FCC Grants BellSouth’s DSL Preemption Request
The FCC granted BellSouth’s request to preempt state rules requiring the firm to provide DSL service to customers who get their voice service from CLECs using UNE loops, sources said. The Commission vote, taken Thurs. before ex-Chmn. Michael Powell left office, reportedly was along party lines -- 3 Republicans favoring the measure, 2 Democrats dissenting in part. The item, awaiting statements by commissioners, hasn’t been released.
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An industry source said the Democrats could have blocked the item by waiting until Powell left to vote. With no Powell vote, the tally would have been 2-2. However, the source said, the Democrats were “induced” to vote as a trade-off for adoption of an unrelated item regarding universal service on tribal lands, which they wanted to get done before Powell left.
BellSouth’s request applies to offering wholesale broadband transmission or retail DSL service over loops leased by CLECs on a stand-alone basis or as part of the UNE platform (UNE-P). BellSouth must provide DSL service to CLEC voice customers in Fla., Ga., La. and Ky., although Ky. Legislators repealed that state’s requirement in July, a spokesman said. The ruling covers about 8,000 customers in the 4 states who take DSL from BellSouth but voice service from CLECs, the spokesman said. He said the preemption request, filed Dec. 9, 2003, doesn’t apply to “naked DSL,” though that term is used often to describe it. Naked DSL, which BellSouth doesn’t offer, is DSL service over a line with no voice service, he said.
BellSouth argued that the FCC’s Triennial Review Order (TRO) said ILECs don’t have to provide broadband services over the same UNE loops CLECs use to provide voice service. BellSouth’s other arguments: (1) The FCC’s Computer Inquiry decisions established that interstate information services should be free of public utility regulation. (2) Under federal law, state agencies generally lack authority to regulate interstate telecom services.
Cinergy Communications, a CLEC in Ky., had urged the FCC in a last-minute ex parte filing Thurs. to reject the BellSouth petition, contending: (1) The FCC can’t grant it legally because a federal court in Ky. has considered and rejected a similar argument. (2) The FCC ruled in the TRO that the Telecom Act obligates ILECs to offer UNEs and wholesale services on a “commingled” basis. In other words, Cinergy said, the ruling agreed with a Ky. PSC ruling that BellSouth had to offer UNE loops commingled with tariffed wholesale DSL transmission service. (3) The FCC “should refuse to countenance BellSouth’s anti- competitive practice of tying access to DSL transmission to its retail voice service.”