USTelecom says the FCC needs to follow procedure if they re-regulate special access

The United States Telecom Association (USTelecom) fired back against CLECs, saying that the FCC needs to follow the right legal procedures if they re-regulate special access.

The association referred to a joint letter filed by Birch Communications, BT Americas and Level 3 in which the trio said the FCC has broad power to adopt regulations governing rates for ILEC special access services.

However, USTelecom said in its own filing that the FCC can't rewrite existing laws and that the letter "distorts the scope of the agency's discretion, which is constrained by the Communications Act, the Administrative Procedure Act (APA), and the Commission's own decisions, and mischaracterizes the level of deference that courts typically afford agencies under Chevron and other precedent that hold agencies to a considerably higher standard in carrying out their rulemaking responsibilities."

USTelecom said that while the joint CLEC letter asks the FCC to re-regulate Ethernet and increase regulation of ILEC special access pricing, "the current regulatory scheme has been in place for some time, and enterprise broadband services, in particular, were deregulated by a grant of forbearance almost a decade ago."

Echoing a similar sentiment made by Verizon (NYSE: VZ) in a filing last week about special access, USTelecom also claims that there are more competitive options from cable and other competitors.

"Cable operators are growing their commercial services and have expanded to serve larger businesses," USTelecom said. "CLECs and other competitive fiber providers have become stronger through consolidation and continue to deploy networks, including last mile facilities to enterprise customer locations."

As it conducts its collection of special access data, the FCC will need to conduct a comprehensive analysis of the market.

"The FCC also set forth a detailed plan for using the data collection to gauge actual and potential competition before identifying a replacement regulatory framework for special access services," USTelecom said. "Although the data do not reflect the most recent expansion into the enterprise broadband services marketplace by cable and other non-ILEC providers (and thus is already stale), there is no question that the data are relevant and thus must be analyzed and considered before any new regulations that disrupt the current regulatory scheme can be imposed. The FCC cannot step in and set prices without a fact-specific, full and fair analysis of the competitive landscape."

For more:
- see this filing (PDF)

Related articles:
Level 3, Birch and BT Americas say FCC has power to regulate ILEC special access rates
BT Americas' Burger says AT&T, Verizon have too much control over special access pricing
Wheeler: Transparency critical in IP, copper network transition
FCC proposes extending copper retirement, sets IP transition protections for consumers, businesses
Windstream amps up special access chorus against AT&T, other ILECs

This article was updated to correct the interpretation of what was said in the USTelecom filing.