Ninth Circuit Holds That State Commissions Have No Authority To Implement Section 271 Of The Telecommunications Act In Interconnection Agreements
In an opinion issued on June 8, 2009 the Ninth Circuit affirmed
an Arizona district court ruling that state commissions may not
impose access or pricing requirements under Section 271 of the
Telecommunications Act of 1996 (the "Act"), 47 U.S.C.
§§ 151, et. seq., in the course of arbitrating
interconnection agreements. Qwest Corp. v. Arizona Corp.
Comm'n, Nos. 07-17079, 07-17080, 2009 WL 1578528, at *1
(9th Cir. June 8, 2009). The court further held that state
commissions are preempted from forcing carriers to make parts of
their networks available on a separately purchasable basis when the
Federal Communications Commission ("FCC") has determined
that they are not required to do so. Id.
Section 251(c)(3) of the Act requires incumbent local exchange
carriers ("ILECs"), like Qwest, to offer competitive
local exchange carriers ("CLECs"), like Covad, certain
"network elements" on an unbundled basis at cost-based,
regulated rates. These unbundled network elements are
commonly referred to as "UNEs." The FCC designates
UNEs by determining if access to a given UNE is
"necessary" and if the failure to provide such access
would competitively "impair" CLECs in providing
services. Id. at *2.
Section 252(a) of the Act permits carriers to negotiate an
interconnection agreement voluntarily without regard to the duties
otherwise imposed under Section 251(b) or (c). If
negotiations fail, pursuant to Section 252(b)(1) either party may
petition a state commission to arbitrate any open issues. The
state commission may only consider issues identified in the
arbitration petition and must ensure that Section 251 requirements
are met. Id. at *3.
Section 271 only applies to those ILECs like Qwest that are, or
incorporate, former Bell Operating Companies ("BOCs").
Section 271(c) allows BOCs to provide "interLATA
services" (roughly meaning long-distance services) only if two
conditions are met: First, the BOC must either have in place
an interconnection agreement approved under Section 252 or, if no
CLEC has requested such an agreement, it must have filed a
statement of generally available terms approved by the state
commission under Section 252(f). Second, independent of
Section 251(c)(3) UNE duties, the BOC must make a statutorily
specified list of elements available on an unbundled basis in
addition to complying with Section 251 and other requirements set
forth in the "competitive checklist."
In contrast to Section 251 UNEs, the FCC has...
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