Special Access Order Voted on Only by Chairman So Far
Chairman Julius Genachowski is the only FCC member to vote so far for an order he circulated June 5 that would freeze further grants of pricing flexibility as the agency seeks more data on special access pricing. The order also denies three pending petitions seeking pricing flexibility while the FCC seeks data: Two from AT&T and one from Windstream.
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Genachowski voted for the order, but it hasn’t attracted other support as of late Wednesday, FCC officials said. Genachowski could put the order on the agenda for the July commission meeting if he wants to force a vote, a common tactic of the agency’s chairmen. Alternately, if he picks up the votes of Democratic Commissioners Mignon Clyburn and Jessica Rosenworcel, under FCC procedures he could force a vote by Republicans Robert McDowell and Ajit Pai. Both the Republicans are concerned about delaying a vote on pending pricing flexibility petitions at this stage while the FCC gathers data (CD June 7 p1).
The state of play means Genachowski’s options are limited at this point to keep the AT&T and Windstream petitions from taking effect next week, industry officials said. AT&T’s petitions for pricing flexibility in San Francisco and San Antonio would be “deemed granted,” under the Communications Act without a commission vote before midnight Monday.
Consideration of the order appears to be fluid, though it’s not clear why Clyburn and Rosenworcel haven’t voted for it, an agency official said. “I don’t think you can read much into that,” said a lawyer who favors special access reform. “The chair votes in favor automatically when he sends out the draft order. If there are lots of edits -- and that can mean just tweaky edits as well as big ones -- everybody else just holds off until the draft settles down. Really routine items collect votes along the way.” Another lawyer following the proceeding said: “I suspect that everyone else is feeling their way still."
An industry critic of the order said he sees few signs it’s collecting much support among the commissioners. “I think there are more people concerned about the process and the optics of this thing than the normal, usual suspects,” the lawyer said. The FCC has put thousands of pages in the record in recent weeks on pricing flexibility petitions that have been pending for five months, the official said.
"The process to develop and consider this order has been thorough, fair, and open,” said an FCC spokesman. “Weeks ago the [Wireline] Bureau issued a public notice listing publicly available documents that the Commission may consider as it reviews that order -- documents that anyone closely following this proceeding should be aware of, such as the pricing flexibility petitions granted over the past decade. Identifying such materials in advance of a decision promotes openness and transparency, going above and beyond the minimum requirements of” the Administrative Procedure Act, he said.