Letter to Solicitor General Ted Olson from state public utility commission members.
Date: March 18, 2004.
Re: Opposition to appeal of opinion [PDF] of the U.S. Court of Appeals (DCCir) in USTA v. FCC.
Source: Charles Davidson, Florida Public Service Commission. TLJ converted a PDF filed into HTML.

March 18, 2004

The Honorable Theodore B. Olson
Solicitor General
Office of the Solicitor General
950 Pennsylvania Ave., NW
Washington, D.C. 20530-0001

Dear General Olson:

We write to respectfully suggest that filing a petition for writ of certiorari on behalf of the Federal Communications Commission’s (FCC) Triennial Review Order (TRO) that was recently overturned by the D.C. Circuit Court of Appeals would not best serve the nation’s consumers. It is our belief that efforts would be better spent on formulating rules consistent with the directions of the Court in its latest order – as well as its past orders – than on pursuing an appeal.

As an initial matter, we do not relish approaching the Solicitor General with unsolicited advice about deciding the legal priorities of the United States. Nevertheless, this issue is one of national import. In addition, it is frequently represented that the state regulators speak with unanimity on this issue. They do not.

Regardless of the ultimate decision rendered, an appeal to the Supreme Court would result in a continued delay of the specific guidance necessary to restore some sense of certainty to the ailing telecommunications sector. It has been eight years since the Telecommunications Act of 1996 was passed, and the D.C. Circuit has, on more than one occasion, sent strong signals regarding the FCC’s responsibilities with respect to the unbundling provisions. Further delay will only serve to keep the industry in a prolonged state of uncertainty and flux.

We are not suggesting whether a particular network element, such as mass market switching, should or should not be on the national list of unbundled network elements. We believe that is for the FCC to decide pursuant to its obligations under the 1996 Telecommunicaitons Act. Instead, we are advocating for greater regulatory certainty.

Such certainty is long overdue and, frankly, is not being provided under the unbundling rules that accompany the TRO. For example, the vacated rules do not define (or provide standards for defining) the relevant geographic market. Rather, the states are asked to make that fundamental policy determination. The TRO similarly fails to provide an operational definition of impairment or to delineate under what circumstances entry into a market is uneconomic. Again, the states are left to make these basic policy decisions. As another example, the rules do not determine how many DS0 (analog) lines must be supplied to a multi-line DS0 customer before that customer is considered to be an enterprise customer rather than a mass market customer. Again, the states are asked to make the determination.

As a consequence of this delegation to the states, key policy decisions that we believe are more appropriately made at the federal level will, in fact, be made by the states under the rules as drafted. This could quite possibly result in policymakers in California, Florida, Maine and Texas, each presented with a similar set of facts, reaching fundamentally different policy outcomes. A patchwork of disparate state policies, however well-intentioned, would bring less, not more, regulatory certainty to the market. Surely, this could not have been the intent of the 1996 Act – which expressly provides for a national deregulatory policy framework.

As a purely legal matter, we agree with the reasoning of the D.C. Circuit on the delegation issue. The FCC should not have delegated decision-making on the ultimate policy issues to the states. While decisions regarding the availability of unbundled network elements under the 1996 Act are for the FCC, we certainly acknowledge that the states can and should continue to play an important role in the process (in fact-finding, making recommendations, oversight, etc.). Ultimately, any state role ought to be guided by clear and consistent definitions and standards from the FCC, such that similar facts result in similar policy outcomes across the nation.

In closing, we see one key goal – avoiding a patchwork of potentially disparate policy outcomes that benefit neither the nation’s economy nor its consumers. We believe that a national policy framework is not only required by the terms of the 1996 Act but that such is also essential to the recovery of a beleaguered telecommunications sector. Thank you for your consideration of our input on this important matter.

Sincerely,

GREGORY SOPKIN, Chairman
Colorado Public Utilities Commission

JACK R. GOLDBERG, Vice-Chairman
Connecticut Dept of Public Utility Control

RUDOLPH “RUDY” BRADLEY, Commissioner
Florida Public Service Commission

KEVIN CRAMER, Commissioner
North Dakota Public Service Commission

CHARLES M. DAVIDSON, Commissioner
Florida Public Service Commission

CONNIE MURRAY, Commissioner
Missouri Public Service Commission

ANTHONY M. RACHAL, III, Commissioner
District of Columbia Public Service Commission

KENNETH SCHISLER, Commissioner
Maryland Public Service Commission

HAROLD D. WILLIAMS, Commissioner
Maryland Public Service Commission