FCC Seeks Comment On RBOC Petition To Forbear From Unbundling Requirements — Grant Would Allow ILECs to Refuse Competitor Access to "Non-Impaired" UNEs at Any Price

SBC Communications Inc. has filed a Petition for Forbearance with the FCC, asking it to declare that ILECs have no obligation under Section 271 of the Telecom Act to provide unbundled access to any network element ("UNE") that the FCC has determined is no longer required to be offered to competitors pursuant to Section 251 of the Act. Comments on the SBC petition are due on Dec. 2, and reply comments are due on Dec. 12.

As you may know, Section 251 and the FCC's rules require ILECs to provide UNEs to competitors at cost-based "TELRIC" rates if the competitors would be "impaired" in providing the service without such access. Section 271 independently requires unbundled access to many UNEs, albeit at "just and reasonable" rather than TELRIC-based rates. CLECs and other competitors have argued that UNEs that are "de-listed" by the FCC under Section 251 as a result of the agency's Triennial Review Order (TRO) must still be made available to competitors under the more relaxed pricing standards of Section 271. The FCC has made such a "non-impairment" finding with respect to several UNEs, including broadband facilities (e.g., fiber-to-the-premises loops, packet switching, packetized capabilities of hybrid copper-fiber loops), OCn loops and transport, and, in some circumstances (subject to state PUC findings), local circuit switching. The practical effect of an FCC grant of SBC's new forbearance petition would be to allow ILECs to refuse to furnish such UNEs at any price.

This "forbearance" proposal may be of critical importance to competitors — including broadband providers and UNE-P and UNE-L CLECs — who utilize UNEs that have been or may in the future be "delisted" under FCC and state PUC decisions, and who have assumed until now that such UNEs would continue to be available under the separate provisions of Section 271.