According to United States Telecom Association, the FCC needs to follow correct procedures if they somehow re-regulate special access. Earlier, a joint letter was filed by Birch Communications, BT Americans and Level 3 in which they claimed that the FCC has the power to adopt regulations governing rates for ILEC special access services. However, US Telecom stated that the FCC is unable to re-write existing laws and the filed 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 another precedent that hold agencies to a considerably higher standard in carrying out their rulemaking responsibilities.”
US Telecom also stated that while the joint CLEC letter ordered the FCC to re-regulate Ethernet and thereby increase and enhance regulation over 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.”
A similar sentiment was echoed by Verizon in another filing last week regarding special access, US Telecom thereby claimed that there are other competitive options from cable and other competitors.
“Cable operators are growing their commercial services and have expanded to serve larger businesses,” US Telecom said. “CLECs and other competitive home phone service providers have become stronger through consolidation and continue to deploy networks, including last mile facilities to enterprise customer locations.”
Previously, the FCC used to conduct its collection of special access data but now it has 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,” US Telecom 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.”