Implementation of Infrastructure Sharing Provisions in the Telecommunications Act of 1996

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

In this document, the Federal Communications Commission affirms in part and modifies in part its original Report and Order implementing section 259 of the Telecommunications Act of 1996 (“1996 Act”). This action is taken to respond to Petitions for Reconsideration that were received by the Commission following release of its original Report and Order. By affirming and clarifying its original Report and Order, the Commission provides parties negotiating section 259 arrangements with a better understanding of their responsibilities.

FOR FURTHER INFORMATION CONTACT:

Gregory Guice, Industry Analysis Division, Common Carrier Bureau, at (202) 418-0095.

SUPPLEMENTARY INFORMATION:

This is a summary of the Order on Reconsideration released April 27, 2000 (FCC 00-140). The full text of the Order on Reconsideration is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW, Washington, DC 20554. The complete text also may be purchased from the Commission's copy contractor, International Transcription Service, Inc. (202) 857-3800, 1231 20th Street, NW, Washington, DC 20037. Additionally, the complete item is available on the Commission's website at <http://www.fcc.gov/Bureaus/Common_Carrier/Orders/2000>.

Synopsis of the Inquiry

1. In the document summarized here, the Federal Communications Commission affirms in part and clarifies in part its original Report and Order implementing section 259 of the Telecommunications Act of 1996 (“1996 Act”). In the 1996 Act, Congress moved to restructure the local telecommunications market by removing legal, regulatory, and economic impediments to competition that sustain a monopoly environment. As part of this restructuring, Congress adopted section 259, which requires incumbent LECs to make available, under certain conditions, public switched network infrastructure and other capabilities to a carrier requesting access, or a “qualifying carrier,” that is providing telephone exchange service outside the incumbent LEC's area. On February 7, 1997, the Commission promulgated general rules and guidelines to define the obligations imposed by section 259. Implementation of Infrastructure Sharing Provisions in the Telecommunications Act of 1996, 62 FR 9704 (Mar. 4, 1997) (“Infrastructure Sharing Order”). Recognizing that a qualifying carrier may not use the facilities or functions of the incumbent LEC to compete in the incumbent's telephone exchange area, as is the case in other market opening provisions of the 1996 Act such as sections 251 and 252, the Infrastructure Sharing Order adopted an approach that depends in large part on negotiations among the interested parties.

2. Specifically in this Order on Reconsideration, the Commission affirms its decision to implement section 259 through a negotiation-driven approach that relies on parties to reach mutually-satisfactory terms for infrastructure sharing. It further affirms its decision to not rely on definitions that are restrictively based on perceptions of present network requirements, and therefore, affirms that things which might be characterized as “services” by the incumbent LEC are not per se excluded from section 259 arrangements.

3. The Commission modifies, however, the Infrastructure Sharing Order in the following manner. First, the Commission clarifies that because 259(b)(6) prevents qualifying carriers from using section 259-requested infrastructure to compete with the providing incumbent LEC in its telephone exchange area, “resale,” as that term is used in conjunction with section 251 of the 1996 Act, is not permitted under section 259 arrangements. Second, the Commission clarifies that nothing in its rules would require an incumbent LEC to make available the intellectual property of third parties without necessary licensing or in violation of existing licensing agreements. Third, the Commission modifies the Infrastructure Sharing Order by placing the primary burden to obtain third-party intellectual property and licensing rights on the carrier requesting access to the incumbent LECs infrastructure. However, the Commission requires that incumbent LECs engage in good faith efforts, whenever requested, to help resolve intellectual property and licensing disputes between qualifying carriers and third-party vendors.

4. Finally, the Commission rejects a petition by MCI requesting the Commission exercise pricing authority and mandate particular prices for shared infrastructure obtained by qualifying carriers pursuant to section 259.