Southwestern Bell Telephone Co. v. Federal Communications Commission

153 F.3d 597, 13 Communications Reg. (P&F) 203, 1998 U.S. App. LEXIS 18352
Court of Appeals for the Eighth Circuit·Decided August 10, 1998·No. Nos. 97-3389, 97-3576, 97-3663 and 97-4106·Published·Cited by 5 cases

Opinion

HANSEN, Circuit Judge.

Pursuant to 47 U.S.C. § 402(a) (1994) and 28 U.S.C. § 2342(1) (1994), various incumbent local exchange carriers (incumbent LECs)2 petition for review of the Federal Communication Commission’s (FCC’s) Third Order on Reconsideration and Further Notice of Proposed Rulemaking, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, 12 FCC Rcd. 12460 (Aug. 18, 1997) (Third Order on Reconsideration). Thé consolidated petitions challenge both the FCC’s determination that shared transport constitutes a network element as defined by 47 U.S.C.A. § 153(29) (West Supp.1998), and the FCC’s determination that incumbent LECs must make shared transport available to new entrants on an unbundled basis pursuant to 47 U.S.C.A. § 251(c)(3), (d)(2). We affirm the FCC’s order and deny the consolidated petitions for review.

I.

In 1996, Congress amended the Communications Act of 1934 with the purpose of fostering competition in both the interexchange and local exchange markets. See Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (to be codified as amended in scattered sections of Title 47, United States Code) (the Act).3 The issues presented in this case relate to the Act’s local competition provisions. The Act requires incumbent LECs to allow new entrants access to their networks in three different ways. Specifically, a LEC must (1) permit requesting competitors to interconnect with the LEC’s local network, (2) provide competitors with access to individual elements of its network on an unbundled basis, and (3) allow competitors to purchase its telecommunications services for resale. 47 U.S.C.A § 251(e)(2)-(4). Together, these duties regarding interconnection, [601]*601unbundled access, and resale are intended to provide would-be competitors with realistic opportunities to enter the market for local exchange service.

The issues presented in the consolidated petitions for review pertain to the incumbent LECs’ duties regarding unbundled access. Section 251(c)(3) requires incumbent LECs to provide new entrants with “nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory.” (emphasis added). The Act defines “network element” as follows:

The term “network element” means a facility or equipment used in the provision of a telecommunications service. Such term also includes features, functions, and capabilities that are provided by means of such facility or equipment, including subscriber numbers, databases, signaling systems, and information sufficient for billing and collection or used in the transmission, routing, or other provision of a telecommunications service.

47 U.S.C.A. § 158(29).

Although Congress defined the term “network element” in the Act, it invested the FCC with the authority to determine which network elements should be made available to new entrants on an unbundled basis. See 47 U.S.C.A. § 251(d)(2). Section 251(d)(2) limits the FCC’s authority in this regard only insofar as it requires the FCC to consider two factors “at a minimum” as it makes this decision. These factors are whether “access to such network elements as are proprietary in nature is necessary,” and whether “the failure to provide access to such network elements would impair the ability of the telecommunications carrier seeking access to provide the services that it seeks to offer.” Id.

On August 8, 1996, the FCC issued its First Report & Order, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, 11 FCC Red. 15499 (Aug. 8, 1996) (First Report & Order), in which it established rules to implement the local competition provisions of the Act. In this order, the FCC identified various network elements and determined, pursuant to its authority under section 251(d)(2), that an incumbent LEC must make each of the elements the FCC had identified available to the LEC’s competitors on an unbundled basis. See First Report & Order ¶ 262; id. at A.P. B (47 C.F.R. § 51.319).4 Salient for our purposes is the FCC’s treatment of interoffice transmission facilities, specifically shared interoffice transmission facilities. Interoffice transmission facilities are the highways of the local exchange. They connect the end offices and tandem switches within the local exchange to one another and carry telephone traffic between and among these offices and switches. See First Report & Order, A.P. B (47 C.F.R. § 51.319(d)(1)). Interoffice transmission facilities are distinct from both the local loops, which connect end users to the local exchange, see id. (47 C.F.R. § 51.319(a)), and the various switches (local and tandem), which determine which interoffice transmission facilities are used to transport the traffic from switch to switch, see id. (47 C.F.R. § 51.319(c)). In its First Report & Order, the FCC emphasized that switching and transport are distinct network elements, each of which must separately be made available to entrants on an unbundled basis. See id. ¶¶ 410, 440; accord 47 U.S.C.A. § 271(c)(2)(B)(v, vi) (requiring LECs to offer “[ljocal transport ... unbundled from switching or other services” and “[l]ocal switching unbundled from transport, local loop transmission, or other services”).

In the First Report & Order, the FCC distinguished dedicated transmission facilities from shared transmission facilities, and treated each separately for purposes of unbundled access. Id. (47 C.F.R. § 51.319(d)(1)). Dedicated transmission facilities, which do not here concern us, are those transmission facilities used by a single customer or carrier. Id. Shared transmission facilities, on the other hand, carry traffic [602]*602of multiple customers or carriers. Id. Regarding shared transmission facilities, the FCC initially determined only that incumbent LECs must provide “unbundled access to shared transmission facilities between end offices and the tandem switch.” Id. ¶440. The FCC did not explain its meaning in detail, but some of its comments suggested that the FCC perhaps anticipated that each individual shared transmission facility—i.e., each link—must be made available as a separate unbundled network element. See id. ¶ 442 (“We find that it is technically feasible for LECs to unbundle the foregoing interoffice facilities as individual network elements.”); id.

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Southwestern Bell Telephone Co. v. Federal Communications Commission, 153 F.3d 597, 13 Communications Reg. (P&F) 203, 1998 U.S. App. LEXIS 18352 (8th Cir. 1998).

153 F.3d 597 (Southwestern Bell Telephone Co. v. Federal Communications Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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