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More than full employment for lawyers?

By Scott Bradner

The FCC finally recently released its new rules on facility sharing in the telcom world. As far as I can tell no one is happy with all of them other than the lawyers. Most of the FCC commissioners went so far as to file statements where they agreed to disagree with parts of the new rules, sometimes quite strongly disagree.

These rules were six months in development. The basic outline was established back in February with the time from then to now taken up with FCC commissioners sniping at each other and doing all that could be done to make the rules survive the inevitable court challenges. Terseness does not seem to be a Washington virtue, the FCC order (HREF="http://www.fcc.gov/Daily_Releases/Daily_Business/2003/db0821/FCC-03-36A1.pdf) runs 576 pages, of which only 34 pages are the rules themselves. The first 491 pages are explanations and responses to comments made by interested parties with 2,447 footnotes. Anything with over 24 hundred footnotes is going to be a problem to actually read. The last 49 pages are the statements of the FCC commissioners, many of which will figure prominently in the lawsuits that are currently being drawn up.

The rules themselves are almost impossible to read since they are actually presented as changes to be made to existing regulations rather than as new regulations. A few tidbits do stand out, for example, tail circuits pricing must be flat rate. But that sort of thing is minor compared to the two big issues. First, the FCC freed carriers from being required to share any new broadband facilities they install, such as fiber to the home. Second, the FCC did not free the carriers from being required to share some existing facilities, such as copper phone wires to the home. The FCC left it up to state regulators to decide what facilities fit in the second category.

If the FCC had gone with one philosophy or the other, that is force sharing of everything or remove the sharing requirement for everything, they would have had only half the world mad at them. But by doing both at the same time they seem to have managed the impossible and have made everyone mad. And, in Washington, mad people start throwing lawyers around. We can look forward to many years of legal challenges to all parts of the rules.

Maybe by the time some of the legal challenges get resolved one of the assumptions underlying the main dispute will be proven one way of the other. The FCC, and the incumbent carriers, have been claiming that they need to be freed from the sharing requirement so that they can make big investments in expanding their infrastructures. Well, they now have that freedom when it comes to new broadband investments, wanna bet on them now making the investments?

disclaimer: I have no proof that a mole from the Harvard law school helped figure this out to ensure jobs for new law school graduates but if results of an action are any indication of the purpose of an action it could be, in any case I did not ask them about this column.