02-5673. Review of the Equal Access and Nondiscrimination Obligations Applicable to Local Exchange Carriers

AGENCY:

Federal Communications Commission

ACTION:

Notice.

SUMMARY:

This document initiates an inquiry to examine the continued importance of the equal access and nondiscrimination obligations of section 251(g) of the Communications Act of 1934, as amended (the Act). This document also seeks to develop a baseline record regarding the current state of equal access and nondiscrimination requirements. As such, it seeks comment on the existing equal access and nondiscrimination obligations of Bell Operating Companies (BOCs), both with and without section 271 authority. The Commission also seeks comment on the equal access and nondiscrimination obligations of incumbent independent local exchange carriers (LECs) and competitive LECs. Then, the Commission asks commenters what the equal access and nondiscrimination requirements of all these carriers should be, considering the many legal and marketplace changes that have transpired since the earlier requirements were adopted.

DATES:

Comments are due May 10, 2002, and reply comments are due June 10, 2002.

FOR FURTHER INFORMATION CONTACT:

Julie Veach, Attorney-Advisor, Policy and Program Planning Division, Common Carrier Bureau, at [phone], or via the Internet at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Inquiry (NOI) in CC Docket No. 02-39, FCC 02-57, adopted February 19, 2002, and released February 28, 2002. The complete text of this NOI is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone [phone], facsimile 202-863-2898, or via e-mail [e-mail]. It is also available on the Commission's Web site at http://www.fcc.gov.

Synopsis of the Notice of Inquiry (NOI)

1. The Commission's goals in conducting this inquiry are: (1) To facilitate an environment that will be conducive to competition, deregulation and innovation; (2) to establish a modern equal access and nondiscrimination regulatory regime that will benefit consumers; (3) to balance regulatory costs against these benefits, and (4) to harmonize the requirements of similarly-situated carriers as much as possible.

2. Background. By adopting the Telecommunications Act of 1996 (1996 Act), Congress sought to lay the foundation for pro-competitive, deregulatory telecommunications policies that facilitate investment in and deployment of advanced services to all Americans. Mindful that competition would not develop in all markets immediately, Congress left in place certain safeguards, such as section 251(g). That statutory provision preserves the equal access and nondiscrimination requirements that were established for LECs “under any court order, consent decree, or regulation, order, or policy of the Commission” prior to passage of the 1996 Act. Notably, section 251(g) imports the obligations of the Modification of Final Judgment (MFJ), the consent decree that settled the Department of Justice's antitrust suit against AT&T and required divestiture of the BOCs, as well as Commission equal access requirements. Section 251(g) grants the Commission authority to prescribe regulations superseding pre-existing equal access and nondiscrimination obligations.

3. First, the Commission seeks comment on how it should go about changing or eliminating any existing equal access and nondiscrimination requirements, should it decide to do so. Specifically, section 251(g) states that all pre-1996 Act requirements continue to apply “until such restrictions and obligations are explicitly superseded by regulations prescribed by the Commission.” Congress expected that “[w]hen the Commission promulgates its new regulations, * * * the Commission will explicitly identify those parts of the interim restrictions and obligations that it is superseding so that there is no confusion as to what restrictions and obligations remain in effect.” The Commission asks whether it should adopt new rules to replace the existing section 251(g) requirements, or is it enough for the Commission to state in an order that such requirements are no longer necessary in the wake of the 1996 Act? Alternatively, it asks whether the Commission should forbear from such requirements to the extent they meet the standards of 47 U.S.C. 160?

4. Changing Market Conditions. The Commission seeks comment on what equal access and nondiscrimination requirements were carried through from the MFJ, to which carriers these requirements apply, and the extent to which these requirements are relevant today. The Commission further seeks comment on whether the goals underlying section 251(g) can be achieved through any other means, including reliance on other provisions of section 251 and the requirements that the Commission has imposed pursuant to those provisions. It further asks how sections 201 and 202, and the Commission's orders interpreting those sections, affect the need for separate equal access and nondiscrimination requirements in light of current marketplace conditions, including the state of competition in the local market and BOC entry into the long distance market.

5. Bell Operating Companies. The Commission seeks comment on the existing equal access and nondiscrimination requirements of BOCs, which include the line of cases stemming from the MFJ. It also seeks comment on what the BOCs' equal access and nondiscrimination obligation should be, whether changes in equal access and nondiscrimination requirements are now needed for BOCs and what changes are appropriate. Should BOCs be required to provide information regarding all available interexchange carriers? What kind of marketing arrangements between BOCs and other carriers are permissible? What is the relationship between sections 251(g) and 272?

6. Incumbent Independent Local Exchange Carriers. Section 251(g) also imports equal access and nondiscrimination requirements that existed for incumbent independent LECs prior to the 1996 Act. The Commission seeks comment on what, if any, “order, consent decree, or regulation, order, or policy of the Commission” applies to incumbent independent LECs. It also asks what the regulatory costs to these carriers are under the current equal access and nondiscrimination requirements and whether those requirements should continue to apply to incumbent independent LECs in view of the new competitive paradigm contemplated by the 1996 Act. The Commission also asks for comment on the extent to which it can harmonize the obligations of incumbent independent LECs that provide interLATA services through a separate affiliate with the obligations of other LECs that provide interLATA services through a separate affiliate, and the extent to which it can harmonize the obligations of incumbent independent LECs that provide interLATA services on an integrated basis with the obligations of other LECs that provide interLATA services on an integrated basis.

7. Competitive Local Exchange Carriers. The Commission also seeks comment on the existing equal access and nondiscrimination obligations that apply to competitive LECs. What Commission orders or other law impose equal access and nondiscrimination requirements on non-incumbent LECs today, and what are the regulatory costs to these carriers of those requirements? What, if any, should the equal access and nondiscrimination obligations of competitive LECs be? Can the Commission harmonize the obligations of competitive LECs with the obligations of other LECs that provide interLATA services on an integrated basis?

Federal Communications Commission.

William F. Caton,

Acting Secretary.