CA6: BellSouth Telecomm v. Universal Telecom [ED Ky, Frankfort 7/21/2006]

BellSouth Telecomm v. Universal Telecom
Telecommunications Act and Interconnection Agreements

Eastern District of Kentucky at Frankfort
06a0256p.06 7/21/2006

SUTTON, Circuit Judge. BellSouth Telecommunications challenges the district court’s affirmance of an order of the Kentucky Public Service Commission allowing Universal Telecom to adopt an existing interconnection agreement between BellSouth and MCI. See 47 U.S.C. § 252(i). Finding no error by the Commission, we affirm.

In enacting the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. § 151 et seq.), Congress sought to enhance competition in the telecommunications industry. To that end, the Act requires incumbent providers of local phone service to offer “interconnection” services—to share their network, in other words—with other telecommunications companies, 47 U.S.C. § 251(a)(1), and provides three mechanisms for doing so: The incumbent and the competitor may negotiate the terms of an interconnection agreement, § 252(a); they may go through arbitration to establish the terms of an interconnection agreement, § 252(b); or a carrier may adopt an existing interconnection agreement between the incumbent and another telecommunications company, § 252(i). Once the parties have reached an agreement via one of these paths, the Act “entrusts state commissions with the job of approving interconnection agreements.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 385 (1999); see 47 U.S.C. § 252(e)(1).

At issue here is the adoption provision, § 252(i), which permits an entrant to a local telephone market (like Universal) to forgo negotiation or arbitration with an incumbent (like BellSouth) by adopting a previously negotiated or arbitrated interconnection agreement between the incumbent and another carrier, see id. (“A local exchange carrier shall make available any interconnection, service, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement.”).

The right to adopt an existing interconnection agreement contains several limitations, one of which is time. Under a regulation promulgated by the Federal Communications Commission (FCC), an entrant seeking to adopt an approved agreement must do so within “a reasonable period of time after the approved agreement is available for public inspection,” 47 C.F.R. § 51.809(c), which is to say a reasonable time after the state commission has approved the underlying agreement, 47 U.S.C. § 252(e)(1), (h).

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