WASHINGTON-The wireless industry is drafting legislation to shift the burden of the forbearance
test in the Telecommunications Act of 1996 from the industry to the Federal Communications Commission. This
legislation is expected to be considered as part of a larger FCC reauthorization effort.
Congress established
procedures in the telecom act that allow entities to ask the FCC to “forebear” from enforcing rules that have
become moot due to competition.
The Personal Communications Industry Association was one of the first entities to
file a forbearance petition, said Mary McDermott, PCIA senior vice president and chief of staff for government
relations. The FCC’s decision on PCIA’s petition showed that “the burden is on the person filing the
petition” to prove there is sufficient competition, McDermott said. “We want a test that is more clearly
focused,” she added.
The Cellular Telecommunications Industry Association also is involved in this effort and
is working with congressional members on appropriate language, said Steven Berry, CTIA senior vice president for
congressional affairs.
The forbearance reform initiative came to light in a press conference on PCIA’s legislative
and regulatory agenda. PCIA President Jay Kitchen said PCIA still is convinced the FCC needs to remove its rules
requiring wireless resale. This was the main thrust of PCIA’s forbearance petition.
In July, the FCC denied PCIA’s
forbearance request on the resale provisions but left open the window for market-by-market forbearance in the future.
The problem with PCIA’s petition was it did not target specific parts of the country, said Ari Fitzgerald, wireless legal
adviser to FCC Chairman William Kennard. “Los Angeles is not Grand Rapids,” Fitzgerald said.
Last
week, Kitchen said PCIA remains concerned the FCC will require too much information to prove there is competition
in a given market. “Some of our carriers worry the FCC will require the amount of paper required for a Section
271 filing,” McDermott added.
Baby Bells attempting to enter the long-distance market must file a Section
271 filing to prove they are in compliance with the 14-point local competition checklist contained in the telecom
act.
Fitzgerald does not believe the test is too burdensome. “We cited the types of issues we would look at …
It is clearly not enough to give us a number. For example, if there are eight competitors in a market but one has 90
percent of the market share, that is clearly not competition,” he said.
David Gusky, vice president of the
Telecommunications Resellers Association, agreed. “The No. 1 issue for us is whether a reseller has access to
service … If a market is truly competitive, then a carrier should not have any misgivings about resale. If a reseller
cannot get access, that is prima facie evidence that the market is not truly open,” Gusky said.
The 1999
legislative/regulatory agenda Kitchen presented was centered on the theme that the marketplace, not the FCC, should
regulate the wireless market.
PCIA is hopeful Congress will help it deliver this message to the FCC. Congress
should not, however, abolish the FCC. Indeed, one of PCIA’s regulatory goals is working to keep the spectrum cap
rules in place. CTIA has asked the FCC to remove restrictions on how much spectrum a carrier can control in a
geographic area. The current cap is set at 45 megahertz. The FCC is reviewing the spectrum cap issue as part of its
biennial review.
