Special Access Order Still Without Votes, as Bureau Decision on Petitions Expected Monday
Chairman Julius Genachowski was still the only FCC member to have voted (CD June 21 p1) on the special access order he circulated two weeks ago, an agency official said late Friday. “It’s the dog that doesn’t bark and I think it speaks volumes that no one is currently supporting the circulated item except the chairman,” an agency official said. Industry and government officials have expected resistance from Commissioners Ajit Pai and Robert McDowell.
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The order would freeze pricing flexibility petitions by AT&T and Windstream. Without a vote Monday, the petitions would automatically be granted at midnight Monday night(CD June 11 p7). An industry lawyer expects the commission to rule Monday on the petitions. An FCC official said he'd be “stunned” if the Wireline Bureau didn’t say something Monday regarding the petitions. A bureau spokesman had no comment on the price flexibility petitions.
"It’s kind of fluid,” said an FCC official. “It has been a long journey. I sense there was process concern from where this was a week or two ago, especially with the House Oversight hearing coming up on July 10th. There’s a fairness of process issue.” The hearing by the Commerce Oversight subcommittee would give members the opportunity to ask what could be hostile questions on how Genachowski has handled the special access item so far.
At this point there are several potentialities. Genachowski could circulate a separate order or petitions could be allowed to go into effect by operation of law, or the bureau could still issue an order on delegated authority, though that may be easily challenged in court, an agency official said Friday. Bureau staff are also reportedly developing a draft item containing a mandatory data collection requirement, the official said. Another possibility remains an interim rule change, after the AT&T and Windstream petitions are granted, or another signal that carriers should not file additional petitions until special access issues are resolved.
An FCC spokesman has said that the process to develop and consider the order has been “thorough, fair, and open,” and the bureau weeks earlier released a public notice listing publicly available documents the commission may consider as it reviews the order. “Identifying such materials in advance of a decision promotes openness and transparency, going above and beyond the minimum requirements of” the Administrative Procedure Act, the spokesman said.