• United States

More than full employment for lawyers?

Sep 01, 20033 mins

The FCC finally recently released its new rules on facility sharing in the telecom world. As far as I can tell no one is happy with all of them other than the lawyers.

Most of the FCC commissioners went so far as to file statements in which they agreed to disagree with parts of the new rules, sometimes quite strongly disagreeing.

The basic outline for these rules was established in February with the time from then to now taken up with FCC commissioners sniping at each other and doing all that could be done to make the rules survive the inevitable court challenges. Terseness does not seem to be a Washington virtue, as the FCC order , of which only 34 contain the rules.

The first 491 pages are explanations and responses to comments made by interested parties, with 2,447 footnotes. Anything with that many footnotes is going to be a problem to actually read. The last 49 pages are the FCC commissioners’ statements, many of which will figure prominently in the lawsuits currently being drawn up.

The rules are almost impossible to read because they are presented as changes to be made to existing regulations rather than as new regulations. A few tidbits do stand out, though, such as that for tail circuit, pricing must be flat-rate.

But that sort of thing is minor compared with two big issues. First, the FCC freed carriers from being required to share any new broadband facilities they install, such as fiber to the home. Second, the FCC did not free carriers from being required to share some existing facilities, such as copper phone wires to the home. The FCC left it up to state regulators to decide what facilities fit in the second category.

If the FCC had gone with one philosophy or the other – force sharing of everything or remove the sharing requirement for everything – the commission would have had only half the world mad at it. But by doing both at the same time, the FCC seems to have made everyone mad. And, in Washington, D.C., mad people start throwing lawyers around. We can look forward to years of legal challenges to all parts of the rules.

Maybe by the time some of the legal challenges are resolved one of the assumptions underlying the main dispute will be proven one way or the other. The FCC, and incumbent carriers, have claimed that these providers need to be freed from the sharing requirement so that they can make big investments in expanding their infrastructures. Well, they now have that freedom when it comes to new broadband investment. Wanna bet on them now making the investments?

Disclaimer: I have no proof that a mole from the Harvard Law School helped figure this out to ensure jobs for new law school graduates, but if results of an action are any indication of the purpose of an action then it could be. In any case, I did not ask the school about this column.