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Bell Atlantic Opposes Breakup of Bundling by FCC
Comments by Bell Atlantic:
There is no policy or legal basis for the Commission to allow the long distance incumbents to use unbundled network elements to provide, or substitute for, special access and private line services. Competing carriers have offered special access and private line services on a competitive basis for the better part of 15 years. This competition developed under the Commission's and like-minded state commission's pro-competition policies that created marketplace incentives for competing carriers first to invest on their own network facilities and then to collocate their own equipment in the incumbents' central offices. As a result of these policies, competing carriers' revenues already are more than half of what the so-called incumbents' receive from their competing special access and private line services. And the competing carrier's share of the special access and private line market is already about the same as MCI WorldCom's and Sprint's combined share of the long distance market. The long distance incumbents ignore this competition and claim that they ought to be able to use unbundled network elements to provide (or substitute for) already competitive special access and private line services. What they are asking is an unwarranted and impermissible windfall that is foreclosed by the Act. From a policy perspective, requiring incumbent carriers to provide unbundled network elements at TELRIC prices to competing carriers for these services would be a complete reversal of the commission's and the states' pro-competition policies, and would affirmatively harm competition in an already workably competitive segment of the market. The availability of unbundled network elements at TELRIC prices as substitutes for special access and private line services would not only discourage competitors from investing in their own network facilities, it would also undermine the network investments they have already made. That is why facilities based carriers like Allegiance, Intermedia and Time Warner opposed the efforts of long distance carriers to substitute unbundled network elements for special access services. In addition, incumbent carriers would have far less incentive to continue to make investments in their own network facilities. From a legal perspective, requiring incumbents to provide access to unbundled network elements for use to provide already competitive special access and private line services would be contrary both to the Act itself and to the Supreme Court's decision construing the Act. Unbundled network elements must be provided only where access to such elements "is necessary" and where the failure to provide access "would impair the ability of the telecommunications carrier seeking access to provide the services that is seeks to offer." 47 U.S.C. 251(d)(2). But any number of competing carriers–including the major long distance incumbents–already have demonstrated that they provide competitive special access and private line services by using their own network facilities, rather than the incumbents' unbundled network elements. They cannot reasonably claim now that they are impaired in providing these services without access to the incumbents' unbundled network elements. Moreover, the Act expressly permits network elements to be provided on "terms and conditions that are just, reasonable and nondiscriminatory." 47 U.S.C. 251(c)(3). These terms and conditions can ensure that carriers use unbundled network elements as Congress intended–to provide competitive local exchange and associated exchange access services–rather than as substitutes for special access and private line services. The Commission should therefore determine that carriers are not entitled to use unbundled network elements to provide or substitute for special access or private line services. |
