The DC Circuit has spoken. Score it a 10-8 round for the ILECs.
The states that stayed their mass market switching proceedings were proven correct today (and fortunately, the court's decision came out quickly enough to spare the other states from wasting even more time and resources on their own proceedings). On its delegation of the mass market switching investigations to the states, the FCC was once again given the back of Judge Williams' hand. The FCC can, for instance, go to the states for "advice and policy recommendations," but if this means that somewhere down the line we'll have a section 271-like model for mass-market switching determinations, I am troubled to my core.
Notably, the Court did not remand the FCC's definition of impairment, but gave the Commission an "FYI" of sorts. The FCC's impairment definition "is vague almost to the point of being empty" with respect to whether operational and entry barriers "make entry into a market uneconomic." Nor did the majority, according to the court, show how below-cost retail rates constitute an entry barrier "where TELRIC rates are so low that unbundling does elicit CLEC entry." Nor did the court consider whether the FCC majority gave intermodal alternatives proper weight. So it goes.
The FCC's refusal to order unbundling of hybrid loops, FTTH, and line sharing was upheld by the court and caused Ray to issue the following statement from the tarmac: "Consumers will benefit from undoing this crazy quilt, legally incoherent FCC decision. The court's ruling is a vindication for a broadband vision for U.S. communications."
Agreed. Unfortunately, assuming today's decision stands it's hard to see how consumers benefit from another Triennial Review (or whatever it should be called after eight years) that draws time and resources away from the FCC's VoIP, intercarrier compensation and universal service reform proceedings. I only hope that Chairman Powell is able to lead the Commission to consensus the next time around - sans the late night politicking and compromises which doomed portions of the TRO from the start.
Oh yeah, with further appeals and another FCC proceeding likely on the horizon, the lawyers did just fine today, too.