WASHINGTON-The Federal Communications Commission last week began investigating various issues fixed wireless carriers believe make it difficult for them to offer facilities-based competition to landline incumbent telcos.
The Personal Communications Industry Association has been at the forefront of this battle, urging the FCC to require building owners give competitive local exchange carriers access to inside wiring and rooftops.
“We are thrilled the FCC is willing to tackle this set of issues … The battle was whether it would be a notice of proposed rule making or a notice of inquiry. It was essential to get an NPRM on” building access, said Brent Weingardt, PCIA vice president for government relations.
The FCC’s competitive networks initiative is being handled in the form of proposed rules and a notice of inquiry.
The proposed rules tentatively conclude the Communications Act requires the type of access to office and apartment buildings that PCIA and others in the fixed wireless community had been seeking.
Comment is sought as to whether inside wiring owned by an ILEC should be considered an unbundled network element. If it is classified as such, ILECs must give access to competitors.
Finally, the notice of proposed rule making asks whether building owners who give access to any telecommunications provider must give access to all providers.
The NOI seeks to develop a record on whether and how state and local rights-of-way and tax policies are having an impact on facilities-based competition. Local governments often impose rights-of-way taxes as part of telco licensing to help defer the costs of road construction. Fixed wireless carriers say that since they do not dig up streets to lay cable, they should not have to pay these taxes.
FCC Commissioner Michael Powell supported the item but questioned whether the FCC could ever find the authority to require building owners to give access to restricted areas, which presumably would include rooftops.
FCC Chairman William Kennard responded that whenever the FCC uses its ancillary jurisdiction or authority it is always considered “novel” or “risky,” but all of those cases have been upheld by the courts. “It is important that we engage these issues but I don’t think we should duck these issues just because there are questions, even constitutional issues.”
This only made Powell upset. “I don’t think as someone who takes an oath to uphold the constitution, [and then] to have concerns of a constitutional nature is to duck the issue,” he said.
FCC Commissioner Harold Furchtgott-Roth said it would have been more simple for the FCC to ask for comment on a petition filed by WinStar Communications Inc. “The simplest thing would have been to send out WinStar’s petition for comment … rather than spending a lot of time trying to put structure on it … I think we do a disservice if we ignore new technologies, and we are not doing that, but I think we do a disservice if we go outside of the law … if we take too long … let’s be pretty darn certain that we are within the law,” Furchtgott-Roth said.
“We are pleased that the FCC has taken this important first step, and are optimistic that a comprehensive and thoughtful review of this issue will be undertaken to ensure the benefits of local competition are realized,” said William J. Rouhana, Jr., WinStar chairman and CEO.
