UNITED STATES TELECOM ASSOCIATION, PETITIONER v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS BELL ATLANTIC TELEPHONE COMPANIES, ET AL., INTERVENORS
No. 00-1012
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 28, 2004 Decided March 2, 2004
Consolidated with 00–1015, 00–1025, 01–1075, 01–1102, 01–1103, 03–1310, 03–1311, 03–1312, 03–1313, 03–1314, 03–1315, 03–1316, 03–1317, 03–1318, 03–1319, 03–1320, 03–1324, 03–1325, 03–1326, 03–1327, 03–1328, 03–1329, 03–1330, 03–1331, 03–1338, 03–1339, 03–1342, 03–1347, 03–1348, 03–1360, 03–1372, 03–1373, 03–1385, 03–1391, 03–1393, 03–1394, 03–1395, 03–1400, 03–1401, 03–1424, 03–1442
Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
On Petitions for Writ of Mandamus and for Review of an Order of the Federal Communications Commission
Donald B. Verrilli, Jr. and Christopher J. Wright argued the cause for CLEC petitioners. With them on the briefs were Mark D. Schneider, Marc A. Goldman, Michael B. DeSanctis, William Single IV, Jeffrey A. Rackow, David W. Carpenter, David L. Lawson, C. Frederick Beckner III, Andrew D. Lipman, Russell M. Blau, Richard M. Rindler, Patrick J. Donovan, Harisha J. Bastiampillai, Dennis D. Ahlers, Steven A. Augustino, Albert H. Kramer, Jonathan E. Canis, Robert J. Aamoth, Carl S. Nadler, Adelia S. Borrasca, Jason D. Oxman, Timothy J. Simeone, Charles C. Hunter, Catherine M. Hannan, Genevieve Morelli, Glenn B. Manishin, Jonathan E. Canis, Teresa K. Gaugler, Jonathan Jacob Nadler, and Jonathan D. Lee. Jennifer M. Kashatus, Paul J. Rebey, Eric J. Branfman, Joshua M. Bobeck, and Angela M. Simpson entered appearances.
James Bradford Ramsay argued the cause for State petitioners. With him on the briefs were Grace Delos Reyes, Jonathan Feinberg, John L. Favreau, John C. Graham, Helen M. Mickiewicz, Gretchen T. Dumas, Maryanne Reynolds Martin, Christopher C. Kempley, Maureen A. Scott, Michael A. Cox, Attorney General, Attorney General‘s Office of the State of Michigan, Thomas L. Casey, Solicitor General, and David A. Voges and Michael Nickerson, Assistant Attorney Generals.
David C. Bergmann, Irwin A. Popowsky, Philip F. McClelland, Patricia A. Smith, Billy Jack Gregg, and F. Anne Ross were on the briefs for petitioner National Association of State Utility Consumer Advocates.
John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, and James M. Carr, Counsel, argued the cause for respondents. With them on the brief were R. Hewitt Pate, Assistant Attorney General, U.S. Department of Justice, Catherine G. O‘Sullivan and Nancy C. Garrison, Attorneys, John A. Rogovin, General Counsel, Federal Communications Commission, and Laurence N. Bourne, Joel Marcus and Christopher L. Killion, Counsel. Andrea Limmer, Attorney, U.S. Department of Justice, and Lisa S. Gelb, Counsel, Federal Communications Commission, entered appearances.
Michael K. Kellogg argued the cause for ILEC intervenors and Catena Networks, Inc. in support of respondents. With him on the brief were Mark L. Evans, Aaron M. Panner, Michael T. McMenamin, James D. Ellis, Paul K. Mancini, Joseph E. Cosgrove, Jr., Gary L. Phillips, James P. Lamoureux, Robert B. McKenna, Charles R. Morgan, James G. Harralson, William P. Barr, Michael E. Glover, Edward Shakin, and Stephen L. Goodman. Alfred G. Richter, Hope E. Thurrott, Lawrence E. Sarjeant, and Jonathan E. Canis entered appearances.
David W. Carpenter argued the cause for CLEC intervenors in support of respondents. With him on the brief were Donald B. Verilli, Jr., Mark D. Schneider, Marc A. Goldman, Michael B. DeSanctis, William Single IV, Jeffrey A. Rackow, David L. Lawson, C. Frederick Beckner III, Teresa K. Gaugler, Charles C. Hunter, Catherine M. Hannan, Andrew D. Lipman, Russell M. Blau, Richard M. Rindler, Patrick J. Donovan, Harisha J. Bastiampillai, Albert H. Kramer, Jonathan D. Lee, Carl S. Nadler, Adelia S. Borrasca, Janson D. Oxman, Robert J. Aamoth, Genevieve Morelli, John T. Nakahata, Sara F. Leibman, John J. Heitmann, Jennifer M. Kashatus, Christopher J. Wright, and Timothy J. Simeone. Roy E. Hoffinger,
Jonathan Feinberg, John L. Favreau, John C. Graham, Helen M. Mickiewicz, Gretchen T. Dumas, Maryanne Reynolds Martin, Christopher C. Kempley, Maureen A. Scott, Michael A. Cox, Attorney General, Attorney General‘s Office of the State of Michigan, Thomas L. Casey, Solicitor General, David A. Voges and Michael Nickerson, Assistant Attorney Generals, James Bradford Ramsay, and Grace Delos Reyes were on the brief for State intervenors in support of respondents.
Laura H. Philips, Douglas G. Bonner, Michael F. McBride, Thomas J. Sugrue, Howard J. Symons, Sara F. Leibman, and Douglas I. Brandon were on the brief of Wireless intervenors in support of respondent. Brian A. Coleman entered an appearance.
Before: EDWARDS and RANDOLPH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
Table of Contents
I. Legal Background . . . . . . . . . . . . . . . . . . . . . . . . 6
II. ILEC Objections . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Unbundling of Mass Market Switches . . . . . . . . . . 11
1. Subdelegation of
2. Impairment in provision of mass market switching . . . . . . . . . . . . . . . . . . . . . . . . 18
3. The Commission‘s definition of “impairment” . . . . . . . . . . . . . . . . . . . . . . . . . . 22
B. Unbundling of High–Capacity Dedicated Transport Facilities . . . . . . . . . . . . . . . . . . . . 26
1. Unlawfulness of the delegation to the states and the national impairment finding . . . . . . . . . . . . . . . . . . . . . . . . . 26
2. Remaining dedicated transport issues . . . . . . 28
a. Route-specific analysis of dedicated transport . . . . . . . . . . . . . . . . . . . . . . . . 28
b. Wireless providers’ access to unbundled dedicated transport . . . . . . . . . . . . . 29
C. Network Modification Requirements . . . . . . . . . . . 33
III. CLEC Objections . . . . . . . . . . . . . . . . . . . . . . . . 34
A. Unbundling of Broadband Loops . . . . . . . . . . . . . 34
1. Hybrid loops . . . . . . . . . . . . . . . . . . . . . . . 35
2. Fiber-to-the-home (“FTTH“) loops . . . . . . . . . 42
3. Line sharing . . . . . . . . . . . . . . . . . . . . . . . 44
B. Exclusion of “Entrance Facilities” . . . . . . . . . . . . . 46
C. Unbundling of Enterprise Switches . . . . . . . . . . . . 47
D. Unbundling of Call–Related Databases and Signaling Systems . . . . . . . . . . . . . . . . . . . . . 49
E. Unbundling of Shared Transport Facilities . . . . . . 50
F.
IV. Unbundling of Enhanced Extended Links (“EELs“) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
A. The Qualifying Service/Non–Qualifying Service Distinction . . . . . . . . . . . . . . . . . . . . . . . 56
B. The EEL Eligibility Criteria . . . . . . . . . . . . . . . . 58
V. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 59
A. NASUCA‘s Standing . . . . . . . . . . . . . . . . . . . . . 59
B. Ripeness of the State Preemption Claims . . . . . . . 60
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
consider, at a minimum, 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.
The Act became effective on February 8, 1996, a little more than eight years ago. Twice since then the courts have faulted the Commission‘s efforts to identify the elements to be unbundled. The Supreme Court invalidated the first effort in AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366, 389–90 (1999) (”AT&T“). We invalidated much of the second effort (including separately adopted “line-sharing” rules) in United States Telecom Association v. FCC, 290 F.3d 415 (D.C. Cir. 2002) (”USTA I“). The Commission consolidated our remand in that case with its “triennial review” of the scope of obligatory unbundling and issued the Order on review here. See Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, CC Docket Nos. 01–338 et al., FCC 03–36, 18 FCC Rcd 16978 (Aug. 21, 2003) (“Order“); Errata, Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, CC Docket Nos. 01–338 et al., FCC 03–227, 18 FCC Rcd 19020 (Sep. 17, 2003). Again, regrettably, much of the resulting work is unlawful.
After a brief summary of the legal background, we address first the ILECs’ claims, then the CLECs’ claims, then the ILEC and CLEC claims relating to a special area, enhanced extended links (“EELs“), and finally a couple of miscellaneous claims.
I. Legal Background
The statute says that the ILECs may charge a “just and reasonable rate” for these unbundled network elements (“UNEs“), see
In its first effort to interpret the “impairment” standard of
The Supreme Court found this reading of “impair” unreasonable in two respects. First, the Commission had irrationally refused to consider whether a CLEC could self-provision or acquire the requested element from a third party. AT&T, 525 U.S. at 389. Second, the Commission had considered any increase in cost or decrease in quality, no matter how small, sufficient to establish impairment—a result the Court concluded could not be squared with the “ordinary and fair meaning” of the word “impair.” Id. at 389–90 & n.11. The Court admonished the FCC that in assessing which cost differentials would “impair” a new entrant‘s competition within the meaning of the statute, it must “apply some limiting standard, rationally related to the goals of the Act.” Id. at 388.
Responding to the AT&T decision, the Commission adopted a new interpretation under which a would-be entrant is “impaired” if, “taking into consideration the availability of alternative elements outside the incumbent‘s network, including self-provisioning by a requesting carrier or acquiring an alternative from a third-party supplier, lack of access to that element materially diminishes a requesting carrier‘s ability to provide the services it seeks to offer.” Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, Third Report and Order and Fourth Further Notice of Proposed Rulemaking, 15 FCC Rcd 3696, 3725 (1999) (“Third Report and Order“), ¶ 51 (emphasis added). But in USTA I we held that this new interpretation of “impairment,” while an improvement, was still unreasonable in light of the Act‘s underlying purposes.
The fundamental problem, we held, was that the Commission did not differentiate between those cost disparities that a new entrant in any market would be likely to face and those that arise from market characteristics “linked (in some degree) to natural monopoly . . . that would make genuinely competitive provision of an element‘s function wasteful.” USTA I, 290 F.3d at 427. This distinction between different kinds of incumbent/entrant cost differentials is qualitative, not merely quantitative, which is why the Commission‘s addition of a requirement that the cost
We also made clear that the Commission‘s broad and analytically insubstantial concept of impairment failed to pursue the “balance” between the advantages of unbundling (in terms of fostering competition by different firms, even if they use the very same facilities) and its costs (in terms both of “spreading the disincentive to invest in innovation and creating complex issues of managing shared facilities,” id. at 427), a balance that we found implicit in the AT&T Court‘s insistence on an unbundling standard “rationally related to the goals of the Act,” id. at 428 (quoting AT&T).
We also objected to the Commission‘s decision to issue, with respect to most elements, broad unbundling requirements that would apply “in every geographic market and customer class, without regard to the state of competitive impairment in any particular market.” USTA I, 290 F.3d at 422. Though the Act does not necessarily require the Commission to determine “on a localized state-by-state or market-by-market basis which unbundled elements are to be made available,” id. at 425 (quoting Third Report and Order, 15 FCC Rcd at 3753, ¶ 122), it does require “a more nuanced concept of impairment than is reflected in findings . . . detached from any specific markets or market categories.” USTA I, 290 F.3d at 426. Thus, the Commission is obligated to establish unbundling criteria that are at least aimed at tracking relevant market characteristics and capturing significant variation.
Finally, we vacated the Commission‘s decision to require ILECs to unbundle the high-frequency portion of their copper loops to requesting CLECs—a practice known as “line sharing” and used by CLECs to provide broadband DSL service—because the Commission had failed to consider adequately whether intermodal competition from cable providers tilted the balance against this form of unbundling in the broadband market.
In response to USTA I the Commission again revised its definition of impairment. This time around, the Commission determined that a CLEC would “be impaired when lack of access to an incumbent LEC network element poses a barrier or barriers to entry, including operational and economic barriers, that are likely to make entry into a market uneconomic. That is, we ask whether all potential revenues from entering a market exceed the costs of entry, taking into consideration any countervailing advantages that a new entrant may have.” Order ¶ 84 (emphasis added). The Commission clarified that the impairment assessment would take intermodal competition into account.
The Commission responded to our demand for a more “nuanced” application of the impairment standard by purporting to adopt a “granular” approach that would consider “such factors as specific services, specific geographic locations, the different types and capacities of facilities, and customer and business considerations.”
The Commission also resolved to use the “at a minimum” language in
The ILECs filed two mandamus petitions with this Court, arguing that the Order violated our decision in USTA I, and in addition filed a petition for review here. Various CLECs, state commissions, and an association of state utility consum-er advocates filed petitions for review in several other circuits; these petitions were transferred to the Eighth Circuit under the random lottery procedure established in
II. ILEC Objections
A. Unbundling of Mass Market Switches
The Commission made a nationwide finding that CLECs are impaired without unbundled access to ILEC switches for the “mass market,” consisting of residential and relatively small business users. This finding was based primarily on the costs associated with “hot cuts” (discussed below), which must be performed when a CLEC provides its own switch. Order ¶¶ 464–75. But the Commission, apparently concerned that a blanket nationwide impairment determination might be unlawfully overbroad in light of the record evidence of substantial market-by-market variation in hot cut costs, delegated authority to state commissions to make more “nuanced” and “granular” impairment determinations.
First, the Commission directed the state commissions to eliminate unbundling if a market contained at least three competitors in addition to the ILEC,
We consider first whether the Commission‘s subdelegation of authority to the state commissions is lawful. We conclude
1. Subdelegation of § 251(d)(2) impairment determinations to state commissions
The FCC acknowledges that
The Commission‘s position is based on a fundamental misreading of the relevant case law. When a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent. See United States v. Giordano, 416 U.S. 505, 512–13 (1974); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 121–22 (1947); Halverson v. Slater, 129 F.3d 180, 185–86 (D.C. Cir. 1997); United States v. Mango, 199 F.3d 85, 90–91 (2d Cir. 1999); Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 702 (9th Cir. 1996); United States v. Widdowson, 916 F.2d 587, 592 (10th Cir. 1990), vacated on other grounds, 502 U.S. 801 (1991). But the cases recognize an important distinction between subdelegation to a subordinate and subdelegation to an outside party. The presumption that subdelegations are valid absent a showing of contrary congressional intent applies only to the former. There is no such presumption covering subdelegations to outside parties. Indeed, if anything, the case law strongly suggests that subdelegations to outside parties are assumed to be improper absent an affirmative showing of congressional authorization. See Shook v. District of Columbia Fin. Responsibility & Mgmt Assistance Auth., 132 F.3d 775, 783–84 & n.6 (D.C. Cir. 1998). See also Nat‘l Ass‘n of Reg. Util. Comm‘rs (“NARUC“) v. FCC, 737 F.2d 1095, 1143–44 & n.41 (D.C. Cir. 1984); Nat‘l Park and Conservation Ass‘n v. Stanton, 54 F. Supp. 2d 7, 18–20 (D.D.C. 1999). (We discuss below some cases that might, mistakenly, be thought to support a contrary view.)
This distinction is entirely sensible. When an agency delegates authority to its subordinate, responsibility—and thus accountability—clearly remain with the federal agency. But when an agency delegates power to outside parties, lines of accountability may blur, undermining an important democratic check on government decision-making. See NARUC, 737 F.2d at 1143 n.41; cf. Printz v. United States, 521 U.S. 898, 922–23 (1997). Also, delegation to outside entities increases the
The fact that the subdelegation in this case is to state commissions rather than private organizations does not alter the analysis. Although United States v. Mazurie, 419 U.S. 544, 556–57 (1975), noted that “limits on the authority of Congress to delegate its legislative power . . . are [ ] less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter,”
Two Ninth Circuit cases have invoked Mazurie to suggest that limitations on an administrative agency‘s power to subdelegate might be less stringent if the delegee is a sovereign entity rather than a private group. See Assiniboine & Sioux Tribes v. Bd. of Oil and Gas, 792 F.2d 782, 795 (9th Cir. 1986); Southern Pacific Transp. Co. v. Watt, 700 F.2d 550, 556 (9th Cir. 1983). But in neither of these cases was this principle necessary to the outcome, and in neither did the court seek to justify the extension of Mazurie from its context—the validity of an express delegation of Congress‘s powers.
We therefore hold that, while federal agency officials may subdelegate their decision-making authority to subordinates absent evidence of contrary congressional intent, they may not subdelegate to outside entities—private or sovereign—absent affirmative evidence of authority to do so.
The Commission‘s plea for Chevron deference is unavailing. A general delegation of decision-making authority to a federal administrative agency does not, in the ordinary course of things, include the power to subdelegate that authority beyond federal subordinates. It is clear here that Congress has not delegated to the FCC the authority to subdelegate to outside parties. The statutory “silence” simply leaves that lack of authority untouched. In other words, the failure of Congress to use “Thou Shalt Not” language doesn‘t create a statutory ambiguity of the sort that triggers Chevron deference. See Ry. Labor Exec. Ass‘n v. Nat. Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (“Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.“); see also Aid Ass‘n for Lutherans v. U.S. Postal Service, 321 F.3d 1166, 1174–75 (D.C. Cir. 2003); Motion Picture Ass‘n of Am. v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995).
The FCC invokes a number of other cases in support of its idea of a presumptive authority to subdelegate to entities other than subordinates. These are inapposite because they do not involve subdelegation of decision-making authority. They merely recognize three specific types of legitimate outside party input into agency decision-making processes: (1) establishing a reasonable condition for granting federal approval; (2) fact gathering; and (3) advice giving. The scheme established in the Order fits none of these models.
Second, there is some authority for the view that a federal agency may use an outside entity, such as a state agency or a private contractor, to provide the agency with factual information. While Assiniboine & Sioux Tribes found that a delegation of decision-making power to a state board would be unlawful, it left open whether reliance by the federal agency on the state board for “nondiscretionary activities such as compiling, hearing, and transmitting technical information might not be permissible and desirable.” 792 F.2d at 795. And National Association of Psychiatric Treatment v. Mendez, 857 F. Supp. 85, 91 (D.D.C. 1994), upheld a federal certifying agency‘s decision to hire a private contractor to conduct surveys of residential treatment centers and pass its results on to the agency, which retained final certification authority. While the FCC has sought to characterize the state commissions’ role here as fact finding, see Order ¶¶ 186, 493, in fact the Order lets the states make crucial decisions regarding market definition and application of the FCC‘s general impairment standard to the specific circumstances of those markets, with FCC oversight neither timely nor assured. The Commission‘s attempted punt does not remotely resemble nondiscretionary information gathering.
Our own decision in Tabor v. Joint Board for Enrollment of Actuaries, 566 F.2d 705, 708 n.5 (D.C. Cir. 1977), seems to straddle the two above variants of permissible relationships. There the federal Joint Board for Enrollment of Actuaries, exercising its broad discretion to set conditions for certifying actuaries to administer ERISA pension plans, required applicants either to pass a Board exam or to pass an exam administered by one of the recognized private national actuarial societies. 566 F.2d at 708 n.5. The court found that the process was “superintended by the Board in every respect,” and that the Board had not abdicated its decision-making authority but merely created a reasonable “short-cut,” contin-gent on the approval of certain private organizations, to satisfy one of the Board‘s own regulatory requirements.
Neither Tabor nor its progeny relied on any principle that subdelegations to outside parties were presumptively valid, since the result in each of these cases was supportable on the theory that no subdelegation of decision-making authority had actually taken place. To the extent that Tabor‘s citation of United States v. Giordano, 416 U.S. 505, 512–13 (1974), might be thought to suggest that external delegations enjoy the same favorable presumption as internal ones, that suggestion was clearly rejected by our decision in Shook, 132 F.3d at 783–84 & n.6.
Third, a federal agency may turn to an outside entity for advice and policy recommendations, provided the agency makes the final decisions itself. Thus in Shook, 132 F.3d at 784, we disapproved the D.C. Control Board‘s delegation of governance powers over D.C. schools to a private Board of Trustees, but we suggested that the Control Board could use an entity of that sort “as an advisory board charged with recommending certain actions and policies to the Control Board.” See also Stanton, 54 F. Supp. 2d at 19–20 & n.6; Mendez, 857 F. Supp. at 91. An agency may not, however, merely “rubber-stamp” decisions made by others under the guise of seeking their “advice,” see Assiniboine & Sioux Tribes, 792 F.2d at 795, nor will vague or inadequate assertions of final reviewing authority save an unlawful subdelegation, see Stanton, 54 F. Supp. 2d at 19, 20–21.
Finally, the Commission‘s claim that Diamond International Corp. v. FCC, 627 F.2d 489, 492–93 (D.C. Cir. 1980), and New York Telephone Co. v. FCC, 631 F.2d 1059, 1065 (2d Cir. 1980), uphold “virtually indistinguishable” FCC subdelegations to state commissions, FCC Br. at 25, is (or should be) embarrassing. These cases involved a wholly unrelated issue: whether the FCC properly interpreted the Communications Act when it decided to permit carriers to file state tariffs for local services used in connection with interstate services. The issue was not delegation of federal authority but rather the scope of federal authority to preempt state authority.
We note that the ILEC petitioners invoke standard expressio unius reasoning to attack the delegation. They point out that other provisions of the Act—e.g., the procedures for arbitration and approval of agreements under
We therefore vacate, as an unlawful subdelegation of the Commission‘s
2. Impairment in provision of mass market switching
Without the (unlawful) innovation of transforming a national impairment finding into a provisional national impairment finding from which state commissions could deviate if they found no impairment under local market conditions, the
The Commission‘s national finding of impairment for mass market switches is based on entry barriers related to the need for ILECs to perform “hot cuts” (manual connections) for CLECs if the latter choose to self-provision mass market switches. See Order ¶¶ 459, 464–76. A “hot cut” requires an ILEC technician to physically disconnect a customer loop from the ILEC switch (to which the loop was hard-wired) and re-wire the loop to the CLEC switch, while simultaneously reassigning the customer‘s phone number from the ILEC switch to the CLEC switch.
Though the Commission in its brief alludes to “other operational and economic factors” that might create barriers to competition in mass market switching, FCC Br. at 36, the Order makes clear that the national impairment finding was based solely on hot cuts. Order ¶¶ 459 n.1405 & 476. (The other factors were to be considered by state commissions in the exercise of the unlawfully delegated authority.) There appears to be no suggestion that mass market switches exhibit declining average costs in the relevant markets, or even that switches entail large sunk costs. The Commission nonetheless concluded that hot cut costs are not the sort of cost disparity that a new entrant into any market might face, since they arise due to the fact that “incumbent LECs’ networks were designed for use in a single carrier, non-competitive environment,” which means that CLECs face operational costs that the ILECs do not.
Though certain sections of the Order suggest that impairment due to hot cut costs might be sufficiently widespread to support a general national impairment finding even in the absence of more “nuanced” determinations to be made by the state commissions,
Moreover, we doubt that the record supports a national impairment finding for mass market switches. In another context the Commission has already addressed a
none of those proceedings did the Commission find the hot cut process inadequate to meet this standard. See Separate Statement of Chairman Michael K. Powell Approving in Part and Dissenting in Part, FCC 03–36 (‘‘Powell Statement’’) at 4. But it distinguished those cases on the ground of uncertainty about whether ILECs would be able to handle the increases in hot cut demand that would flow from denying CLECs access to switches as UNEs. Order ¶ 469 & n.1435. The ILECs contend that in fact hot cut processes are ‘‘scalable,’’ so that existing sufficiency can be projected onto larger-scale usage. See ILEC Br. at 16 (citing Powell Statement at 5; Memorandum Opinion and Order, Application by Bell Atlantic New York for Authorization Under Section 271 of the Communications Act to Provide In–Region, InterLATA Service in the State of New York, 15 FCC Rcd 3953, 4114 (1999), ¶ 308).
The record on the matter is mixed, perhaps sufficiently so that the Commission’s ‘‘provisional’’ assumption to the contrary might be sustainable as an absolute finding, given the deference we would owe the Commission’s predictive judgment and the inevitability of some over- and under-inclusiveness in the Commission’s unbundling rules. But the Commission implicitly conceded that hot cut difficulties could not support an undifferentiated nationwide impairment finding. Order ¶ ¶ 425, 485, 493. Moreover, we made clear in USTA I that the Commission cannot proceed by very broad national categories where there is evidence that markets vary decisively (by reference to its impairment criteria), at least not without exploring the possibility of more nuanced alternatives and reasonably rejecting them. 290 F.3d at 425–26. One can imagine the Commission successfully identifying criteria based, for example, on an ILEC’s track record for speed and volume in a market, integrated with some projection of the demand increase that would result from withholding of switches as UNEs. The Commission, however, has made no visible effort to explore such possibilities.
Additionally, the ILEC petitioners suggested several more narrowly-tailored alternatives to a blanket requirement that mass market switches be made available as UNEs. Considering such narrower alternatives is essential in light of our admonition in USTA I that the Commission must balance the costs and benefits of unbundling. 290 F.3d at 429. ‘‘Rolling’’ hot cuts are one such proffered alternative. Under that concept the Commission could require unbundled access to ILEC switching on new lines for 90 days (or some other period of time) in order to give the ILEC time
Moreover, even if the FCC had adopted some lawful mechanism for making exemptions from its general national rule, it could not necessarily rely on the existence of that mechanism as the sole justification for not adopting a more narrowly tailored rule. While a rational rule that would otherwise be impermissibly broad can be saved by ‘‘safety valve’’ waiver or exception procedures, the mere existence of a safety valve does not cure an irrational rule. See ICORE, Inc. v. FCC, 985 F.2d 1075, 1080 (D.C. Cir. 1993); Alltel Corp. v. FCC, 838 F.2d 551, 561–62 (D.C. Cir. 1988). And a rule is irrational in this context if a party has presented to the agency a narrower alternative that has all the same advantages and fewer disadvantages, and the agency has not articulated any reasonable explanation for rejecting the proposed alternative.
We therefore vacate the FCC’s determination that ILECs must make mass market switches available to CLECs as UNEs, subject to the stay discussed in Part VI below, and remand to the Commission for a re-examination of the issue.
3. The Commission’s definition of ‘‘impairment’’
The Commission claims that no party in this litigation has challenged the concept embodied in its new interpretation of ‘‘impairment.’’ All the disputes, it says, are about the proper implementation of that standard. FCC Br. at 18. Not exactly. For example, although the ILEC petitioners’ objections to the Commission’s mass market switching provisions are all within the framework of the Commission’s subdelegation scheme, a number of them clearly go to the character of the impairment standard embodied in that scheme.
As a general matter the ILECs argue the Commission’s impairment standard is so open-ended that it imposes no meaningful constraints on unbundling, and would be unlawful even if applied by the FCC itself. ILEC Br. at 28; see also Separate Statement of Commissioner Kathleen Q. Abernathy Approving in Part and Dissenting in Part, FCC 03–36 at 6–7 & n. 16 (claiming that the Commission’s multifactor test is no different from the totality-of-the-circumstances approach struck down in USTA I). More specifically, the ILECs claim that the Commission’s unbundling test unlawfully permits states to consider as a potential source of impairment retail rates that are held below cost by state regulation against the ILECs’ will, and unlawfully precludes consideration of intermodal competition when determining whether a market is suitable for competitive supply.
On the general point about the open-endedness of the Commission’s standard, we observe that the Order’s interpretation of impairment is an improvement over the Commission’s past efforts in that, for the most part, the Commission explicitly and plausibly connects factors to consider in the impairment inquiry to natural monopoly characteristics (declining average costs throughout the range of the relevant market), see Order ¶ ¶ 75–76 & nn.245, 256, 258–59, ¶ 87 & n.283, or at least connects
In light of our remand, this is not the occasion for any review of the Commission’s impairment standard as a general matter; it finds concrete meaning only in its application, and only in that context is it readily justiciable. A few general observations are pertinent, however.
Relation of ‘‘impairment’’ to the ‘‘at a minimum’’ clause. We note that there are at least two ways in which the Commission could have accommodated our ruling in USTA I that its impairment rule take into account not only the benefits but also the costs of unbundling (such as discouragement of investment in innovation), in order that its standard be ‘‘rationally related to the goals of the Act.’’ See USTA I, 290 F.3d at 428. One way would be to craft a standard of impairment that built in such a balance, as for example by hewing rather closely to natural monopoly features. The other is to use a looser concept of impairment, with the costs of unbundling brought into the analysis under
That said, we do note that in at least one important respect the Commission’s definition of impairment is vague almost to the point of being empty. The touchstone of the Commission’s impairment analysis is whether the enumerated operational and entry barriers ‘‘make entry into a market uneco-nomic.’’ Order ¶ 84. Uneconomic by whom? By any CLEC, no matter how inefficient? By an ‘‘average’’ or ‘‘representative’’ CLEC? By the most efficient existing CLEC? By a hypothetical CLEC that used ‘‘the most efficient telecommunications technology currently available,’’ the standard that is built into TELRIC? Compare
Intermodal alternatives. As for the ILECs’ claim that the Commission’s impairment standard unlawfully excludes consideration of intermodal alternatives, we observe that the Commission expressly stated that such alternatives are to be considered when evaluating impairment. Order ¶ ¶ 97–98, 443. Whether the weight the FCC assigns to this factor is reasonable in a given context is an question that we need not decide, except insofar as we reaffirm USTA I’s holding that the Commission
Impairment in markets where state regulation holds rates below historic costs. In the name of ‘‘universal service,’’ state regulators have commonly employed cross-subsidies, tilting rate ceilings so that revenues from business and urban customers subsidize residential and rural ones. USTA I, 290 F.3d at 422. On remand from our decision in USTA I, the Commission decided to consider regulated below-cost retail rates as a factor that may ‘‘impair’’ CLECs in competing for mass market customers. See Order ¶ 518. The ILECs object strenuously, and it appears virtually certain that the issue will recur on remand.
The Commission’s brief treatment of the issue makes no attempt to connect this ‘‘barrier’’ to entry either with structural features that would make competitive supply wasteful or with any other purposes of the Act (other than, implicitly, the purpose of generating ‘‘competition,’’ no matter how synthetic). The Commission rightly says that if prevailing rates are too low to elicit CLEC entry even with the benefit of UNEs, the unbundling mandate will have no consequences. True enough. But it is no defense of a rule to say that it is harmless in those cases where it has no effect at all; that presumably is true even of the most absurd rule.
The interesting case is the one where TELRIC rates are so low that unbundling does elicit CLEC entry, enabling CLECs to cut further into ILEC revenues in areas where the ILECs’ service is mandated by state law—and mandated to be offered at artificially low rates funded by ILECs’ supracompetitive profits in other areas. If the scheme of the Act is successful, of course, the very premise of these below-cost rate ceilings will be undermined, as those supracompetitive profits will be eroded by Act-induced competition. In competitive markets, an ILEC can’t be used as a piñata. The Commission has said nothing to address these obvious implications, or otherwise to locate its treatment of the issue in any purposeful reading of the Act.
We recognize, of course, that the historic accounting costs relied upon by state regulators are, like TELRIC itself, an artificial construct that may not closely track true economic cost. But that is no justification for the Commission’s refusal to evaluate the probable consequences of its approach, and to adopt, in the light of those estimations, a policy that it can reasonably say advances the goals of the Act.
B. Unbundling of High–Capacity Dedicated Transport Facilities
1. Unlawfulness of the delegation to the states and the national impairment finding
The Commission has made multiple impairment findings with respect to dedicated transport elements (transmission facilities dedicated to a single customer or carrier), varying the findings by capacity level. First, it found that competing providers are not impaired without unbundled access to ‘‘OCn’’ transport facilities (very high-capacity transport facilities or bandwidths within such facilities), Order ¶ ¶ 359, 372, and all petitioners appear to accept that finding. Second, the Commission found that competitors are impaired without unbundled access to DS1 transport, DS3 transport, and dark fiber transport, but made this nationwide impairment finding subject to variation by state commissions applying specific ‘‘competitive triggers.’’ Id. ¶ 359; see also id. ¶ ¶ 381–93. Explaining this latter decision, the Commission observed that its nationwide impairment findings for DS1, DS3, and dark
Specifically, the Commission instructed states to apply two competitive triggers on a route-by-route basis. Id. ¶ ¶ 399–401. First, the ‘‘self-provisioning’’ trigger required states to find no impairment if three or more competitors had deployed non-ILEC transport facilities along a specific route. Id. ¶ ¶ 400, 405–09. Second, the ‘‘wholesale facilities’’ trigger required states to find no impairment if two or more competing carriers were immediately able and willing to sell transport along a given route at wholesale rates. Id. ¶ ¶ 400, 412–16. Even where the triggers were not satisfied, the FCC allowed a finding of non-impairment if a state, applying seven criteria (all quite fluid and none quantified), determined that the route was suitable for multiple competitive supply. Id. ¶ 410. If a state believed that there was impairment on a specific route despite facial satisfaction of the self-provisioning trigger, it could petition the Commission for a waiver. Id. ¶ 411.
As we explained in the mass market switching context, the Commission may not subdelegate its
2. Remaining dedicated transport issues
The ILECs have raised two additional issues about the Commission’s treatment of dedicated transport, and the CLECs yet another. We address the ILECs’ objections here, and that of the CLECs (which relates to so-called ‘‘entrance facilities’’) below in the portion of the opinion devoted to their claims.
a. Route-specific analysis of dedicated transport
In USTA I we expressed skepticism regarding whether there could be impairment in markets ‘‘where the element in question—though not literally ubiquitous—is significantly deployed on a competitive basis,’’ giving as a specific example interoffice dedicated transport. 290 F.3d at 422. We also instructed the Commission, as noted above, to apply a ‘‘nuanced’’ concept of impairment connected to ‘‘specific markets or market categories.’’ Id. at 426. Any process of inferring impairment (or its absence) from levels of deployment depends on a sensible definition of the markets in which deployment is counted.
We do not see how the Commission can simply ignore facilities deployment along similar routes when assessing impairment. Suppose points A, B, and C are all in the same geographic market and are similarly situated with regard to the ‘‘barriers to entry’’ that the Commission says are controlling. See Order ¶ ¶ 84 et seq. Suppose further that multiple competitors supply DS1 transport between points A and B, but only the ILEC and one other CLEC have deployed DS1 transport between A and C. The Commission cannot ignore the A–B facilities deployment when deciding whether CLECs are impaired with respect to A–C deployment without a good reason. The Commission does explain why competition on the A–B route should not be sufficient to establish competition is possible on the A–C route, Order ¶ 401, but this cannot explain the Commission’s implicit decision to treat competition on one route as irrelevant to the existence of impairment on the other. Nor does the Commission explain whether, and why, the error costs (both false positives and false negatives) associated with a route-by-route market definition are likely to be lower than the error costs associated with alternative market definitions. While it may be infeasible to define the barriers to entry in a manageable form, i.e., in such a way that they may usefully be applied to MSAs (or other plausible markets) as a whole, the Commission nowhere suggests that it explored such alternatives, much less found them defective.
b. Wireless providers’ access to unbundled dedicated transport
In addition to their general challenge to the FCC’s provisional national finding that competitors are impaired without access to dedicated transport facilities, the ILEC petitioners also attack the Commission’s conclusion that providers of wireless service (also known as commercial mobile radio services, or ‘‘CMRS’’) qualify for unbundled access to these facilities. According to the ILECs, the Commission not only failed to conduct the requisite impairment analysis for wireless providers, but in fact found that wireless growth has been ‘‘remarkable’’: 90% of the U.S. population lives in areas served by at least three wireless providers, 40% of Americans and 61% of American households own a wireless phone, wireless prices have been steadily declining, and 3–5% of wireless customers use wireless as their only phone, treating it as a full substitute for traditional land line service. Order ¶ 53. Although the ILECs implicitly concede that wireless providers would be impaired if they were denied any access to ILEC dedicated interoffice transport facilities, they point out that wireless providers have traditionally purchased such access from ILECs at wholesale rates (a transaction classified, since adoption of the Act, under
The FCC and the wireless intervenors do not challenge the assertion that the current regime has witnessed a rapidly expanding and prosperous market for wireless service. Rather, they rely on the principle that ‘‘evidence that requesting carriers are using incumbent LEC tariffed services’’ is not ‘‘relevant to [the] unbundling determination.’’ Order ¶ 102.
The Commission offers several justifications for its decision to treat special access availability as irrelevant to the impairment analysis. None withstands scrutiny. First, the Commission suggests that it would be
inconsistent with the Act if we permitted the incumbent LEC to avoid all unbundling merely by providing resold or tariffed services as an alternative. Such an approach would give the incumbent LECs unilateral power to avoid unbundling at TELRIC rates simply by voluntarily making elements available at some higher price.
Order ¶ 102 (footnote omitted). While the possibility to which the Commission points is undeniable, its implications for the Act’s implementation aren’t as horrifying as the Commission seems to think. After all, the purpose of the Act is not to provide the widest possible unbundling, or to guarantee competitors access to ILEC network elements at the lowest price that government may lawfully mandate. Rather, its purpose is to stimulate competition—preferably genuine, facilities-based competition. Where competitors have access to necessary inputs at rates that allow competition not only to survive but to flourish, it is hard to see any need for the Commission to impose the costs of mandatory unbundling.
We recognize that, given the ILECs’ incentive to set the tariff price as high as possible and the vagaries of determining when that price gets so high that the ‘‘impairment’’ threshold has been crossed, a rule that allowed ILECs to avoid unbundling requirements simply by offering a function at lower-than-TELRIC rates might raise real administrability issues. Those complications might in principle support a blanket rule treating the availability of ILEC tariffed service as irrelevant to impairment. But the FCC hasn’t defended its decision in those terms or even tried to explicate these complications. Moreover, where (as here) market evidence already demonstrates that existing rates outside the compulsion of
The FCC also suggests that the ILECs’ view would effectively read unbundled access out of the Act. Both the Commission and the wireless intervenors argue that this conclusion finds support in Iowa Utilities I, which held that ILECs could not avoid unbundling requirements by classifying certain features as ‘‘services’’ rather than ‘‘network ele-ments.’’ 120 F.3d at 809. There the ILECs had argued that the legislative history of the Act suggested that functions offered as services were meant to be governed by the resale provisions of
The Commission next argues that considering special access availability in the impairment analysis would ‘‘be contrary to the Act’s requirement that unbundled facilities ... should be priced at cost-based rates and our determination that TELRIC is the appropriate methodology for determining those rates....’’ Order ¶ 102. This is circular. The question is which facilities must be unbundled, or, more specifically, what the relevant benchmark is for assessing whether entry is ‘‘impaired’’ if non-ILECs don’t have access to UNEs (at whatever rate the Commission might choose to prescribe).
Finally, the FCC suggests that tariffed services ‘‘present different opportunities and risks for the requesting carrier than the use of UNEs or non-incumbent LEC alternatives.’’ Order ¶ 102. This may well be true in certain cases, and on an appropriate record the Commission might find impairment even when services were available from ILECs outside
We therefore hold that the Commission’s impairment analysis must consider the availability of tariffed ILEC special access services when determining whether would-be entrants are impaired, and vacate ¶ ¶ 102–03 of the Order. This of course still leaves the Commission free to take into account such factors as administrability, risk of ILEC abuse, and the like. What the Commission may not do is compare unbundling only to self-provisioning or third-party provisioning, arbitrarily excluding alternatives offered by the ILECs.
C. Network Modification Requirements
In Iowa Utilities I, the Eighth Circuit struck down an FCC rule that required ILECs to provide interconnection and UNEs superior in quality to those that the ILEC provided for itself. 120 F.3d at 812–13. But the court nonetheless ‘‘endorse[d] the Commission’s statement that ‘the obligations imposed by sections 251(c)(2) and 251(c)(3) include modifications to incumbent LEC facilities to the extent necessary to accommodate interconnection or access to network elements.’ ’’ Id. at 813 n.33. The line between impermissible ‘‘superior quality’’ requirements and permissible ‘‘modification’’ requirements is not always clear.
In the Order under review, the Commission ‘‘require[d] incumbent LECs to make routine network modifications to unbundled transmission facilities used by requesting carriers where the requested transmission facility has already been constructed.’’ Order ¶ 632. The Commission elaborated that ‘‘routine network modifications’’ include ‘‘those activities that incumbent
The ILECs claim that these passages manifest a resurrection of the unlawful superior quality rules. We disagree. The FCC has established a clear and reasonable limiting principle: the distinction between a ‘‘routine modification’’ and a ‘‘superior quality’’ alteration turns on whether the modification is of the sort that the ILEC routinely performs, on demand, for its own customers. While there may be disputes about the application, the principle itself seems sensible and consistent with the Act as interpreted by the Eighth Circuit. Indeed, the FCC makes a plausible argument that requiring ILECs to provide CLECs with whatever modifications the ILECs would routinely perform for their own customers is not only allowed by the Act, but is affirmatively demanded by
The ILECs further object that the Order unlawfully permits states to find that ILECs are not entitled to compensation for making the requested modifications. We agree with the FCC that this challenge will not be ripe for judicial review until a state actually decides how much an ILEC may charge for a specific network modification.
III. CLEC Objections
A. Unbundling of Broadband Loops
The Commission declined to require ILECs to provide unbundled access to most of the broadband capabilities of mass market loops. In particular, it decided (subject to certain qualifications) not to require unbundling of the broadband capabilities of hybrid copper-fiber loops, Order ¶ ¶ 288–89, or fiber-to-the-home (‘‘FTTH’’) loops, id. ¶ ¶ 273–77, and it also decided not to require ILECs to unbundle the high-frequency portion of copper loops, a practice known as ‘‘line sharing,’’ id. ¶ ¶ 255–63. The Commission did require ILECs to unbundle the narrowband portion of hybrid loops, Order ¶ 296, but it permitted ILECs to use a different type of technology to connect the fiber feeder loop to the copper distribution portion of the loop than the ILEC itself used, in light of technological and engineering considerations, Order ¶ 297.
The CLEC petitioners attack these decisions as inconsistent with the Act. They argue, first, that CLECs are impaired without access to the broadband capabilities of loops and, second, that the Commission is obligated to unbundle any elements for which impairment has been shown. We consider these claims with respect to each broadband element in question. We then consider the CLECs’ claim that their access to the narrowband portion of hybrid loops is impaired by the FCC’s decision permitting ILECs to substitute an allegedly inferior connection technology.
1. Hybrid loops
The Commission found some degree of impairment from competitors’ lack of unbundled
The CLECs object to this interpretation of the ‘‘at a minimum’’ clause, arguing that the Act prohibits ‘‘ad hoc’’ balancing of the statute’s pro-competition goals with an allegedly conflicting goal derived from the uncodified
The CLECs offer two main arguments to support their interpretation of the ‘‘at a minimum’’ clause. First, they claim that the Commission’s interpretation contravenes the Act’s ‘‘stated purpose’’ of promoting competition, CLEC Br. at 18, a goal that is an ‘‘end in itself.’’ Id. (quoting Verizon, 535 U.S. at 476). But in fact the passage from Verizon on which the CLECs rely says that eliminating traditional ILEC monopolies ‘‘was considered both an end in itself and an important step toward the Act’s other goals,’’ including ‘‘boosting competition in broader markets.’’ 535 U.S. at 476 (emphasis added). Section 706(a) identifies one of the Act’s goals beyond fostering competition piggy-backed on ILEC facilities, namely, removing barriers to infrastructure investment. The Commission thus acted reasonably in its interpretation of the ‘‘at a minimum’’ clause.
Second, the CLECs contend that failing to impose unbundling in the face of an impairment finding amounts to an unlawful decision to ‘‘forbear’’ from applying the requirements of
But
As we noted above in Part II.A.3, there are at least two ways in which the Commission could take into account the frustration of some of the Act’s goals—such as encouraging facilities-based competition—that would flow from giving
We therefore hold that the Commission reasonably interpreted
But was the Commission’s decision on hybrid loops, on this record, a legitimate application of that principle? The Commission explained that its decision would stimulate the infrastructure investment contemplated by
The Commission also identified two additional considerations that would mitigate any negative impact on local competition in broadband. First, CLECs still have unbundled access to other loop alternatives in the ILEC network, including copper subloops, which allow CLECs to compete in the broadband market. Order ¶ 291. Second, intermodal competition in broadband, particularly from cable companies, means that, even if CLECs proved unable to compete with ILECs in the broadband market, there would still be vigorous competition from other sources. Id. ¶ 292.
The CLEC petitioners reject all these justifications, and pose a series of objections. First, they argue, the FCC should redress any investment disincentives for ILEC broadband loop investment not by withholding unbundling, but by modifying the UNE pricing rules. But as we have already held,
Second, the CLECs insist that the record demonstrates that there is no need for additional incentives for investment in broadband infrastructure. With respect to broadband customers served by hybrid loops, ILECs have already extensively deployed fiber feeder loops, and, the CLECs
The Commission says little in the Order or in its brief to respond the assertion that ILECs would invest in fiber feeder even without revenue from broadband. Indeed, the Commission appears to concede that ILECs are already investing heavily in fiber feeder loops, Order ¶ ¶ 224, 290, and offers no specific evidence suggesting that unbundling the broadband capabilities of these loops would have a substantial negative impact on this investment. (Nor, to be sure, do the CLECs offer any sort of sophisticated econometric analysis demonstrating the likely marginal impact on investment.)
But there are at least three other aspects of the Commission’s investment incentives argument to which the CLEC response is either inadequate or non-existent. First, the Commission suggested that greater incentives may be needed for ILECs to deploy the additional electronic equipment needed to provide broadband access over a hybrid loop. While the CLECs are correct that the Commission concluded that the deployment of this equipment was far less ‘‘costly, complex, and risky’’ than deployment of the fiber feeder, Order ¶ 244, the Commission also noted that this equipment had not been widely deployed, and suggested that ILECs had been deterred by the ‘‘regulatory environment.’’ Order ¶ 290 & n.838.
Second, the Commission noted that deployment of feeder fiber is the first step toward FTTH, and that limiting access to ILEC fiber facilities increases incumbents’ incentives to develop and deploy FTTH. Order ¶ ¶ 272, 290. Though the CLECs dismissed this as ‘‘pure speculation,’’ the Commission relied on submissions in the record that the CLECs have not directly impeached. Order ¶ 290 n.837. While the CLECs may be right that the Commission’s judgment entails increasing consumer costs today in order to stimulate technological innovations for which there is not yet sufficient consumer demand, there is nothing in the Act barring such trade-offs. Cf. Consumer Electronics Ass’n v. FCC, 347 F.3d 291, 300–03 (D.C. Cir. 2003) (upholding Commission rule that increased television prices in order to stimulate transition to digital TV, for which there is little present demand).
Third, the Commission rested its judgment not only on the perceived negative effect of unbundling on ILEC investment incentives but also on a conclusion that unbundling hybrid loops would deter CLECs themselves from investing in deploying their own facilities, possibly using different technology. Order ¶ ¶ 288, 290. Although the CLECs argue that this is inconsistent with the Commission’s finding that for fiber loops, as for copper loops, ‘‘the costs are both fixed and sunk, and
We thus believe that, even if the CLECs are correct that unbundling would have no impact on ILEC investment in the fiber feeder portion of hybrid loops, the other investment disincentives the Commission identified are sufficient for us to uphold the reasonableness of the Commission’s determination. Reading the Order as a whole, we see little sign that the Commission would have come out otherwise if it had given the CLEC arguments as much credit as they deserve. See Indiana Muni. Power Agency v. FERC, 56 F.3d 247, 256 (D.C. Cir. 1995)
(D.C. Cir. 1995); Carnegie Natural Gas Co. v. FERC, 968 F.2d 1291, 1294 (D.C. Cir. 1992).
Nor can we say that the Commission was arbitrary or capricious in thinking that any damage to broadband competition from denying unbundled access to the broadband capacities of hybrid loops is likely to be mitigated by the availability of loop alternatives or intermodal competition. With regard to loop alternatives, we agree with the CLECs that these alternatives are not a perfect substitute for the ILECs’ hybrid loops, but we understand the Commission to say only that they are a partial substitute; they will mitigate, not eliminate, CLEC impairment. More important, we agree with the Commission that robust intermodal competition from cable providers—the existence of which is supported by very strong record evidence, including cable‘s maintenance of a broadband market share on the order of 60%, see Order ¶ 292—means that even if all CLECs were driven from the broadband market, mass market consumers will still have the benefits of competition between cable providers and ILECs. Although the CLECs point to evidence that CLEC broadband competition has played a role in constraining ILEC pricing, see Declaration of Robert D. Willig, ¶ ¶ 206–08, Joint Appendix (‘‘J.A.’’) 885–87, the evidence itself is hardly rigorous and is offset by conflicting material, see Letter of Susanne Guyer, Vice President, Verizon, at 2 (J.A. 2146), itself not rigorous. Thus the Commission‘s consideration of past pricing effects was not arbitrary, and in any event, as the discussion above shows, its overall judgment turned on a range of factors.
We therefore hold that the Commission‘s decision not to order unbundling of the broadband capacity of hybrid loops was based on permissible statutory considerations and supported by substantial evidence.
Although the Commission refused to unbundle the broadband portion of hybrid loops, it required ILECs to unbundle the narrowband portion, Order ¶ 296, and the CLECs raise an issue relating to the details of this unbundling. The Commission said for various technical reasons this would be more difficult for hybrid loops that used integrated digital loop carrier (‘‘IDLC’’) equipment to connect the fiber feeder portion of the loop to the copper distribution portion than it would for those that used universal digital loop carrier equipment (‘‘UDLC’’). Order ¶ 297 & n.855.
The CLECs protest that the record ‘‘unambiguously established that UDLC substantially degrades the speed and
2. Fiber-to-the-home (‘‘FTTH’’) loops
For FTTH loops, the Commission found relatively little impairment except in a specific, limited domain. Although FTTH deployment showed some characteristics in common with copper loops (the costs being ‘‘both fixed and sunk, and deployment [being] expensive,’’ Order ¶ 274), the Commission believed that the revenue opportunities of FTTH deployment were great enough to ‘‘ameliorate many of the entry barriers.’’ Id.; see also id. ¶ 276 (same, with respect to FTTH parallel to or in replacement of existing copper plant). With respect to new or so-called ‘‘greenfield’’ FTTH deployments (as for a new subdivision), it denied unbundling without qualification. Id. ¶ 275. For the ‘‘largely theoretical’’ scenario in which an ILEC constructed FTTH parallel to or in replacement of its existing copper plant (‘‘overbuild’’), it declined to find impairment as to broadband services, id. ¶ 276, but agreed with the CLECs’ concern that an ILEC might replace and ultimately deny access to the copper loops that CLECs were using to serve mass market customers, id. ¶ 277. In the overbuild situations, then, it ruled that the ILEC must either keep the existing copper loop connected after deploying FTTH, or else provide CLECs with unbundled access to the narrowband capabilities of the replacement FTTH loop. Id. ¶ ¶ 277, 281–84.
Although not contesting the concept that large expected revenue can offset scale economies, the CLECs do object to the Commission‘s decision that CLECs are not impaired by lack of unbundled access to FTTH. They argue that the Commission ignored two critical considerations. First, they point out that the FCC made a national finding that CLECs are impaired without unbundled access to enterprise market high-capacity DS3 loops (which are made from the same fiber as mass market FTTH loops), finding that ‘‘a single DS3 loop, generally, can not provide a sufficient revenue opportunity’’ to overcome the entry barriers to deployment. Order ¶ 320. This, the CLECs say, contradicts the Commission‘s conclusion that ‘‘the substantial revenue opportunities posed by FTTH deployment help ameliorate many of the entry barriers presented by the costs and scale economies.’’ Id. ¶ 274. Second, they argue that ILECs enjoy significant ‘‘first mover’’ advantages due to their existing customer base, rights-of-way, and their existing networks’ substantial excess fiber capacity (‘‘dark fiber’’) that ILECs can readily use for network extensions.
While the CLECs’ objections are convincing in many respects, they are ultimately unavailing. Even if the CLECs are impaired with respect to FTTH deployment (a point we do not decide), the
3. Line sharing
In USTA I, 290 F.3d at 428–29, we vacated the Commission‘s decision to provide CLECs with unbundled access to the high frequency portion of copper loops to provide broadband DSL services, primarily because the Commission had failed to consider the relevance of intermodal competition in the broadband market. On remand, the Commission decided to reverse its earlier position and eliminated this unbundling mandate. The Commission explained its change of heart as follows.
First, the FCC rejected its prior finding that lack of separate access to the high frequency portion would cause impairment. The earlier impairment finding had been based on a notion that broadband revenues would not justify the cost of the whole loop. But now, applying its new decision to focus on all the potential revenues from the full functionality of a loop (voice, data, video, and other services), the Commission believes that these revenues would offset the costs associated with purchasing the entire loop. Order ¶ 258. Additionally, the Commission reasons that CLECs interested only in broadband could obtain broadband frequencies from other CLECs through line-splitting, in which one CLEC provides voice service on the low frequency portion of the loop and the other provides DSL on the high frequency portion. Thus, after taking both costs and revenues into account, the FCC decided that eliminating mandatory line sharing would not impair CLECs’ ability to provide broadband service. Id. ¶ 259.
The Commission also observed that the difficulties of cost allocation for different portions of a single loop had led most states to price the high frequency portion of the loop at approximately zero. This distorted competitive incentives since CLECs that purchased only the high frequency portion had an irrational cost advantage over both ILECs and CLECs that purchased the whole loop to offer a range of services. Order ¶ 260. The anomalous price differential also skewed CLECs’ incentives toward providing only broadband service instead of bundled voice and DSL, discouraged innovative arrangements between voice CLECs and data CLECs, and discouraged product differentiation between ILEC and CLEC offerings. Id. ¶ 261. Thus the FCC found the results of mandatory line sharing to be contrary to the Act‘s goal of encouraging vigorous
Finally, following our mandate in USTA I, the Commission noted the substantial intermodal competition from cable companies, which provide nearly 60% of all high-speed lines. Order ¶ 262 & nn.777–78. Although noting that intermodal competition was not ‘‘dispositive’’ in the impairment analysis, the Commission found that it lessened any competitive benefits associated with line sharing. Id. ¶ 263. Taking this into account, along with the negative impact of unbundling on competitive incentives, it found that ‘‘the costs of unbundling the [high frequency portion of the loop] outweigh the benefits. . . .’’ Id.
As with FTTH, we find that even if the CLECs are right that there is some impairment with respect to the elimination of mandatory line sharing, the Commission reasonably found that other considerations outweighed any impairment. And again we note the ambiguous state of the record on the price-constraining effect of CLEC DSL service. We read the Commission as concluding that, at least in the future, line sharing is not essential to maintain robust competition in this market, a conclusion based on permissible considerations and supported by evidence in the record. With respect to the skewed incentives from zero pricing of the high frequency portion, it is of course true that alternative cost allocations could have reduced the skew, but any alternative allocation of costs would itself have had some inescapable degree of arbitrariness.
Summary. We therefore uphold the Commission‘s rules concerning hybrid loops, FTTH, and line sharing on the grounds that the decision not to unbundle these elements was reasonable, even in the face of some CLEC impairment, in light of evidence that unbundling would skew investment incentives in undesirable ways and that intermodal competition from cable ensures the persistence of substantial competition in broadband.
B. Exclusion of ‘‘Entrance Facilities’’
Entrance facilities are dedicated transmission facilities that connect ILEC and CLEC locations. Before the Order, the Commission had defined ‘‘dedicated transport facilities’’ as including entrance facilities. But in the Order it concluded that this definition was ‘‘overly broad,’’ Order ¶ 365, and found that ‘‘a more reasonable and narrowly-tailored definition of the dedicated transport network element includes only those transmission facilities within an incumbent LEC‘s transport network, that is, the transmission facilities between incumbent LEC switches,’’ id. ¶ 366. Thus it held, as a matter of statutory interpretation, that entrance facilities were not ‘‘network elements’’ subject to the statutory unbundling requirements of
The CLEC petitioners object that the Commission‘s interpretation is flatly inconsistent with the text of the Act. In particular, the CLECs point out that
While the Commission‘s reasoning appears to have little or no footing in the statutory definition, we find the record too obscure to make any final ruling. The CLECs helpfully provide a diagram of various telecommunications network facilities, in which entrance facilities appear as completely stand-alone items linking a CLEC switch with an ILEC office. CLEC Reply Br. at 3. But no party offers an explanation as to why ILECs rather than CLECs construct these facilities. If (as appears) they exist exclusively for the convenience of the CLECs, it seems anomalous that CLECs do not themselves provide them, presumably doing so at the costs associated with ‘‘the most efficient telecommunications technology currently available,’’
C. Unbundling of Enterprise Switches
The Commission determined, on a nationwide basis, that CLECs are not impaired by lack of unbundled access to switching for the enterprise market at DS1 capacity and above. Order ¶ ¶ 451–53. Though observing that the record showed no impairment on a national basis in the absence of unbundling, id. ¶ 454, and indeed did ‘‘not contain evidence identifying any particular markets where competitive carriers would be impaired,’’ id. ¶ 455, the Commission went on to note that ‘‘a geographically specific analysis could possibly demonstrate that competitive carriers are impaired without access to unbundled incumbent LEC local circuit switching for DS1 enterprise customers in a particular market,’’ id. ¶ 454. It therefore permitted state commissions to petition the Commission to waive the ‘‘no impairment’’ finding in particular markets. Id. ¶ ¶ 455–58. The operative passages direct the state commissions to ‘‘examine’’ certain issues, and ‘‘consider [certain] evidence,’’ and to make ‘‘finding[s].’’ It is obscure what weight the Commission intended to give these findings.
CLEC petitioners argue that the 90-day time limit on this petition procedure is arbitrary and capricious, given that in the mass market switching context the Order gave states nine months to collect and analyze market data. In what appears to be a throwaway sentence, the CLECs say the harm inflicted by this supposed error is ‘‘compounded’’ by the fact that the 90-day state proceedings are voluntary rather than mandatory (i.e., at the option of the state commissions), and that the impairment issue cannot be revisited absent changed circumstances. Order ¶ 455.
Since we have invalidated the FCC‘s subdelegation scheme with respect to mass market switches, a challenge based on the inconsistency between the nine-month period for mass market determinations and the 90-day period for enterprise market determinations is moot as a practical matter (though not in the strict jurisdictional sense). Cf. Belton v. Washington Metro. Area Transit Auth., 20 F.3d 1197, 1203 (D.C. Cir. 1994). And in any event, we agree with the FCC that the market data states are to analyze under the enterprise switching provisions are significantly different
The CLECs make a rather underdeveloped argument that the vice of the alleged time-limit anomaly is ‘‘compounded’’ by the state proceedings being ‘‘voluntary rather than mandatory,’’ and that enterprise switching cannot be re-instated after the 90-day period without changed circumstances. CLEC Br. at 40 (citing Order ¶ 455). But these claims seem ancillary to the now-irrelevant time-limit theory, and without a showing of a need for a safety valve, we see no occasion to reach them.
Finally, we note that our holding regarding unlawful subdelegation of FCC authority to state commissions does not control the limited state commission role contemplated in the portion of the Order dealing with enterprise switching. In this context, state commissions are allowed merely to petition the FCC for a waiver of the unbundling order; the FCC has not granted the states authority to make final decisions on such matters as the existence of impairment. Because no party has challenged the limited state role in the enterprise switching context we have no occasion to rule on whether the role contemplated for the states here is legally problematic.
D. Unbundling of Call-Related Databases and Signaling Systems
Call-related databases are used in signaling networks for billing or for transmission, routing, and other telecommunica- tions services. These databases include, for example, ones that provide name identification for caller ID service and ones that contain information on calling cards. Order ¶ 549. When CLECs have unbundled access to ILEC mass market switches, they also have access to the databases that the signaling network permits carriers to access. Id. ¶ 551. Where CLECs provide their own switches, however, they don‘t automatically have access to the needed databases, and they must either self-provision or purchase databases from the ILEC or a third party. Id.
The Commission determined that CLECs are not impaired without unbundled access to ILEC databases (other than the 911 database) because of the abundance of alternative providers. Order ¶ ¶ 551–57. The CLECs object, arguing that the only reason alternatives to ILEC databases exist is that the Commission had previously required ILECs to provide unbundled access to their databases (removing any competitive incentive for the ILECs to withhold the databases from third parties). But the CLECs point to nothing in the record demonstrating that this is so. Even if they did, we doubt that this alone would support a finding of impairment. As it stands, CLECs evidently have adequate access to call-related databases. If subsequent developments alter
E. Unbundling of Shared Transport Facilities
The FCC found CLECs that lease ILEC mass market switches are impaired without unbundled access to so-called ‘‘shared transport’’—transmission facilities shared by more than one carrier, including the ILEC, running between end office switches, between end office switches and tandem switches, and between tandem switches within the ILEC‘s network. Order ¶ ¶ 533–34. But the FCC also concluded that, ‘‘because switching and shared transport are inextricably linked, if incumbent LECs are no longer obligated to unbundle switching, they should no longer be obligated to unbundle shared transport.’’ Id. ¶ 534. In effect, it found that CLECs are entitled to unbundled shared transport only in cases where mass market switching has also been unbundled. Id. The CLECs object to this condition for unbundled shared transport, saying that they are ‘‘impaired’’ without access to shared transport between local tandem switches when they ‘‘transit’’ traffic—that is, when they transport traffic that originates on their network to other carriers’ networks. The Commission in fact recognized the claim, saying that it proposed to address the issue in a pending rulemaking on intercarrier compensation. Id. ¶ 534 n.1640.
Although the FCC failed to resolve an impairment question pressed by the CLECs in this Order, the Commission ‘‘need not address all problems ‘in one fell swoop.’ ’’ U.S. Cellular Corp. v. FCC, 254 F.3d 78, 86 (D.C. Cir. 2001) (quoting Nat‘l Ass‘n of Broadcasters v. FCC, 740 F.2d 1190, 1207 (D.C. Cir. 1984)). The FCC generally has broad discretion to control the disposition of its caseload, and to defer consideration of particular issues to future proceedings when it thinks that doing so would be conducive to the efficient dispatch of business and the ends of justice. See GTE Service Corp. v. FCC, 782 F.2d 263, 273–74 (D.C. Cir. 1986) (citing Nader v. FCC, 520 F.2d 182, 195 (D.C. Cir. 1975) and Cellular Mobile Sys. of Penn., Inc. v. FCC, 782 F.2d 182, 197 (D.C. Cir. 1985)). So long as the FCC‘s decision to postpone consideration of the transiting issue doesn‘t result in unreasonable delay or impose substantial hardship on the CLECs—which hasn‘t been shown here—the Commission‘s choice to organize its rulemaking docket in this way is lawful.
F. Section 271 Pricing and Combination Rules
The CLEC petitioners object to both of these differences, arguing that the independent
With regard to pricing, the CLECs have no serious argument that the text of the statute clearly demonstrates that the
As to combinations, the CLECs argue that the Supreme Court decisions in AT&T and Verizon establish that the nondiscrimination provision in
CLEC reliance on AT&T and Verizon is misplaced for two reasons. First, as we‘ve already held with regard to pricing,
IV. Unbundling of Enhanced Extended Links (‘‘EELs’’)
Enhanced extended links (‘‘EELs’’) are high-capacity loop/transport combinations that run directly between an end user (usually a large business customer) and an IXC/CLEC office. Supplemental Order Clarification, 15 FCC Rcd 9587, 9593 (2000), ¶ 10 n.36. EELs can be used to provide local exchange services, but they can also be used to originate and terminate long-distance calls. IXC providers have traditionally purchased these services from ILECs for long distance purposes as a special access service, i.e., under the ILEC‘s tariff rather than at TELRIC rates.
In its first Order implementing the 1996 Act, the FCC did not impose any limits on the telecommunications services that a CLEC could provide with the UNEs to which it was entitled access. Order ¶ 134 & n.446 (citing Third Report and Order, 15 FCC Rcd at 3911–12 ¶ 484 and First Report and Order, 11 FCC Rcd at 15671–72 ¶ 356). But in 1999 the FCC modified this principle with respect to EELs, and issued (as an interim measure) a supplemental order that limited access to EELs as UNEs to those CLECs that would use unbundled EELs to provide ‘‘a significant amount of local exchange service.’’ Supplemental Order, 15 FCC Rcd 1760, 1760 ¶ 2. The FCC subsequently clarified and refined this principle, adopting three ‘‘safe harbors’’ that required CLECs to certify sufficient local traffic percentages in order to qualify for unbundled access to EELs, Supplemental Order Clarification, 15 FCC Rcd 9587, 9598–60 ¶ 22, and restricting ‘‘commingling’’ by CLECs of EELs and tariffed special access services used for interoffice transmission, id. at 9602 ¶ 28. We upheld these rules—which the FCC characterized as ‘‘interim restrictions’’—in Competitive Telecommunications Ass‘n v. FCC, 309 F.3d 8 (D.C. Cir. 2002) (‘‘CompTel’’). In the Order under review, the Commission revised its approach to EELs. First, the Commission generalized the principle underlying its earlier EELs rulings by interpreting the unbundling obligations of
The Commission also changed its strategy for enforcing this basic principle and for preventing ‘‘gaming’’ by carriers that, while not bona fide providers of local service, might seek to take advantage of the low (TELRIC) price of unbundled EELs. It abandoned the ‘‘safe harbor’’ approach, agreeing with the CLECs that this regime
While the Commission admitted that none of the anti-gaming requirements by itself would prevent gaming, it concluded that they were ‘‘collectively sufficient to restrict the availability of these UNE combinations to legitimate providers of local voice service.’’ Order ¶ 600 (emphasis in original). It justified this conclusion on the logic that ‘‘the burdens and inefficiencies for a provider to meet these criteria for non-qualifying service would deter a carrier of non-qualifying service from re-designing its operations to subvert our rules.’’ Id. The Commission also allowed CLECs that met the eligibility criteria, but that currently purchased EELs from ILECs as special access services at wholesale rates (i.e., not TELRIC), to ‘‘convert’’ these wholesale services to UNEs. Order ¶ 586. The CLECs object both to the concept of distinguishing between qualifying and non-qualifying service, and to the eligibility criteria used to implement the distinction.
A. The Qualifying Service/Non-Qualifying Service Distinction
The CLECs object to the FCC‘s decision that long distance is not a ‘‘qualifying service,’’ claiming that this conclusion is foreclosed by
The Commission asserts that ‘‘section 251(d)(2)‘s reference to the ‘services that [the carrier] seeks to offer’ is ambiguous as to the question of which services we should analyze in the context of our impairment analysis.’’ Order ¶ 137 (alteration in original). Having thus ‘‘conclude[d] that the language of section 251(d)(2) is ambiguous concerning the scope of the impairment inquiry,’’ Order ¶ 138, the FCC looked to the history and purposes of the Act and concluded that ‘‘a reasonable interpretation of the statute’’ would restrict the impair- ment inquiry to those services offered in direct competition with ILEC core services such as local voice and data services, id. ¶ 139.
In CompTel we agreed with the Commission that
Here the Commission asserts an entirely different sort of statutory ambiguity, namely, whether long distance services are ‘‘services’’ at all and therefore require the Commission, on request, to perform an impairment analysis. We are not persuaded by the Commission‘s claim that the ambiguity regarding the permissibility of service-by-service impairment determinations extends to whether long distance services (or other telecommunications services that do not compete directly with ‘‘core’’ ILEC services) are ‘‘services’’ within the meaning of
The Commission does suggest that the ‘‘impairment’’ requirement is closely linked to natural monopoly conditions that prevail only with respect to the core ILEC services that the Commission defined as ‘‘qualifying services.’’ FCC Br. at 77 (citing USTA I, 290 F.3d at 427). But that argument addresses impairment, not the definition of ‘‘services.’’ We therefore remand those sections of the Order (¶ ¶ 132–53) resting the exclusion of ‘‘non-qualifying’’ services on the Commission‘s reading of the phrase ‘‘telecommunications services’’ in
This does not, of course, necessarily invalidate the Commission‘s effort to prevent the use of EELs for long distance service. The CLECs have pointed to no evidence suggesting that they are impaired with respect to the provision of long distance services, and in CompTel we emphatically held that the Act did not bar a service-by-service analysis of impairment. 309 F.3d at 12–14. The CLECs do not deny that they have been able to purchase use of EELs as ‘‘special access.’’ As we noted with respect to wireless carriers’ UNE demands, competitors cannot generally be said to be impaired by having to purchase special access services from ILECs, rather than leasing the necessary facilities at UNE rates, where robust competition in the relevant markets belies any suggestion that the lack of unbundling makes entry uneconomic.
On remand, therefore, the Commission will presumably turn to the issue of impairment. Because it may well find none with reference to long distance service, we now turn to the eligibility criteria.
B. The EEL Eligibility Criteria
Both the CLECs and the ILECs object to the FCC‘s eligibility criteria. The CLECs say they are too stringent and are over-inclusive insofar as they preclude access to EELs used to provide services for which CLECs are impaired. The ILECs claim they are too lax and are under-inclusive insofar as they fail to prevent CLECs from using unbundled EELs exclusively for long distance services.
We think that the Commission‘s eligibility criteria, though imperfect, reflect a reasonable effort to establish an administrable system that balances two legitimate but conflicting goals: the prevention of ‘‘gaming’’ by CLECs seeking to offer services for which they are not impaired, and the preservation of unbundled access for CLECs seeking to offer services for which
The ILECs make an independent attack on the Commission‘s decision to allow ‘‘conversions’’ of wholesale special access purchases to UNEs. As we discussed in the section on wireless carriers, the presence of robust competition in a market where CLECs use critical ILEC facilities by purchasing special access at wholesale rates, i.e., under
V. Miscellaneous
There remain two loose ends, attacks on the Order by the National Association of State Utility Consumers Advocates (‘‘NASUCA’’) and by a group of state petitioners. We find that NASUCA lacks standing and that the state petitioners’ claim is unripe.
A. NASUCA‘s Standing
NASUCA is a non-profit association of offices, each of which has been designated by its respective state govern- ments to represent the interests of utility consumers in regulatory and judicial proceedings. We agree with the Commission that NASUCA has failed to establish standing pursuant to the requirements of Sierra Club v. EPA, 292 F.3d 895, 899–901 (D.C. Cir. 2002), though for different reasons than those advanced by the Commission.
Under Sierra Club, ‘‘a petitioner whose standing is not self-evident should establish its standing by the submission of its arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding.’’ 292 F.3d at 900. A petitioner‘s standing is self-evident only if ‘‘no evidence outside the administrative record is necessary for the court to be sure of it.’’ Id. at 900. Contrary to the Commission‘s assertions, we believe that no evidence outside the administrative record is necessary to explain how (on NASUCA‘s view of the merits) the Order injures the consumers that NASUCA claims to represent. See NASUCA ex parte letter (Feb. 13, 2002) at 2–3. On the theories advanced by NASUCA, consumers would enjoy a superior price/quality trade-off in telephone service if the Commission accepted its analysis. But it is not at all self-evident from the record that NASUCA meets the associational standing criteria established in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 344–45 (1977), for entities that are not voluntary membership organizations. See also Fund Democracy, LLC v. SEC, 278 F.3d 21, 25–26 (D.C. Cir. 2002); Am. Legal Found. v. FCC, 808 F.2d 84, 89–90 (D.C. Cir. 1987). Although utility consumer interests are clearly affected by the Order, nothing in the administrative record or NASUCA‘s opening brief establishes that NASUCA is qualified to represent those interests in federal court. We therefore conclude that NASUCA lacks standing and do not reach the merits of its claims.
B. Ripeness of the State Preemption Claims
The state petitioners argue that the Order improperly preempts state unbundling regulations that exist independent of the Commission‘s federal unbundling regulations enacted pursuant to
The state petitioners’ challenge to the preemptive scope of the Order is not ripe. The general prediction voiced in ¶ 195 does not constitute final agency action, as the Commission has not taken any view on any attempted state unbundling order. Nor does the states’ claim present a purely legal question, as they acknowledge that Commission regulations will lawfully preempt in some circumstances. See Alascom, Inc. v. FCC, 727 F.2d 1212, 1218–20 (D.C. Cir. 1984); see also Time Warner Entertainment Co. v. FCC, 56 F.3d 151, 193–96 (D.C. Cir. 1995). Besides, the state petitioners have not—and probably could not—identify any substantial hardship that they would suffer by deferring judicial review of the preemption issues until the FCC actually issues a ruling that a specific state unbundling requirement is preempted. We therefore hold the challenge unripe.
VI. Conclusion
To summarize: We vacate the Commission‘s subdelegation to state commissions of decision-making authority over impairment determinations, which in the context of this Order applies to the subdelegation scheme established for mass market switching and certain dedicated transport elements (DS1, DS3, and dark fiber). We also vacate and remand the Commission‘s nationwide impairment determinations with respect to these elements.
We vacate the Commission‘s decision not to take into account availability of tariffed special access services when conducting the impairment analysis, and we therefore vacate and remand the decision that wireless carriers are impaired without unbundled access to ILEC dedicated transport. We vacate the Commission‘s distinction between qualifying and non-qualifying services, and remand (but do not vacate) the decision that competing carriers are not entitled to unbundled EELs for provision of long distance exchange service.
We remand the Commission‘s decision to exclude entrance facilities from the definition of ‘‘network element’’ for further development of the record to allow proper judicial review.
The petitions for review are otherwise denied, except for NASUCA‘s petition,
As to the portions of the Order that we vacate, we temporarily stay the vacatur (i.e., delay issue of the mandate) until no later than the later of (1) the denial of any petition for rehearing or rehearing en banc or (2) 60 days from today‘s date. This deadline is appropriate in light of the Commission‘s failure, after eight years, to develop lawful unbundling rules, and its apparent unwillingness to adhere to prior judicial rulings.
So ordered.