Declaratory Ruling on DSL over Unbundled Network Element Loops
On March 17, 2005, the Federal Communications Commission adopted a Memorandum Opinion and Order and Notice of Inquiry (FCC 05-78) in WC Docket No. 03-251, granting in part a petition for declaratory ruling filed by BellSouth Telecommunications, Inc. The FCC determined under Section 251(d)(3) of the Communications Act of 1934, as amended, that state regulatory commissions may not require an incumbent local exchange carrier (LEC) to provide digital subscriber line (DSL) service to an end-user customer over the same unbundled network element (UNE) loop facility that a competitive LEC uses to deliver voice service.
The Commission concluded that state decisions imposing such requirements conflict with and substantially prevent the implementation of federal unbundling regulations established under the Triennial Review Order, exceeding the limited reservation of state authority under Section 251(d)(3).
- FCC Order Number: FCC 05-78 in WC Docket No. 03-251
- Adoption Date: March 17, 2005; Release Date: March 25, 2005
- Petitioner: BellSouth Telecommunications, Inc. (petition filed December 9, 2003)
- Statutory Basis: Sections 201, 251, 252, and 706 of the Communications Act of 1934
Evaluation of State Commission Rulings and Loop Unbundling Rules
BellSouth challenged rulings from regulatory commissions in Florida, Kentucky, Louisiana, and Georgia that ordered BellSouth to provide wholesale DSL or its retail FastAccess Internet service to customers who switched their voice services to competitive LECs utilizing UNE loops or the UNE-Platform (UNE-P).
The FCC explained that when a competitive LEC leases an entire UNE loop, a state mandate requiring the incumbent to deliver DSL over the high-frequency portion of the loop (HFPL) effectively reclaims the HFPL from the competitor. This arrangement leaves the competitive carrier with only the low-frequency portion of the loop (LFPL). Because the FCC expressly declined to unbundle the LFPL in the Triennial Review Order, state orders compelling this dynamic amount to forced LFPL unbundling in direct conflict with federal policy.
The Commission emphasized that competitors seeking to provide combined voice and data services can utilize federal line-splitting rules to partner with other competitive data providers rather than requiring the incumbent LEC to supply DSL.
- Florida PSC: Had ordered BellSouth to maintain FastAccess service for customers moving to UNE voice providers in arbitrations with Florida Digital Network and Supra Telecommunications.
- Kentucky PSC: Had mandated DSL provisioning on UNE-P loops in an arbitration with Cinergy Communications.
- Louisiana PSC: Had prohibited BellSouth from withholding wholesale or retail DSL from CLEC voice customers.
- Georgia PSC: Had ruled that BellSouth's DSL restriction violated an interconnection agreement with MCI and state tying regulations.
Commingling and Number Portability Clarifications
The FCC clarified that its commingling rules do not require an incumbent LEC to deliver wholesale DSL over a loop facility leased in its entirety by a competitive LEC, as commingling is designed to permit requesting carriers to link wholesale services to UNEs, not to compel incumbent provisioning over leased facilities.
In response to concerns raised by cable and voice providers—including Comcast Phone, Time Warner, and Bright House Networks—the Commission reaffirmed carrier obligations under Section 251(b)(2) regarding local number portability. The Commission warned incumbent LECs that they cannot delay or refuse number porting requests by imposing non-porting requirements, such as demanding that a consumer cancel existing DSL service before porting their telephone number.
- Commingling rules under 47 CFR § 51.5 do not compel incumbents to provide services across competitor-leased facilities.
- Carriers are strictly prohibited from imposing extraneous conditions or delays on the telephone number porting process.
Notice of Inquiry and Commission Statements
Alongside the declaratory ruling, the Commission initiated a Notice of Inquiry (NOI) to examine broader market issues regarding service bundling and tying arrangements. The NOI seeks public comment on whether conditioning legacy services on the purchase of new services harms intramodal or intermodal competition, limits consumer choice, or affects emerging services such as Voice over Internet Protocol (VoIP).
Commissioners Michael J. Copps and Jonathan S. Adelstein issued a joint statement approving in part and dissenting in part. While supporting the FCC's enforcement of nondiscriminatory number portability, they dissented from the majority's preemption of state-level restrictions on broadband tying arrangements.
- NOI Comment Period: 60 days after Federal Register publication; Reply Comments due 90 days after publication.
- NOI Docket: WC Docket No. 03-251.