D.C. Circuit Finds FCC's Elimination of Dominant Carrier Regulation for Certain ILECs' Special Access Broadband Lines Reasonable, but Subject to Review in Current Special Access Docket


Last week, the U.S. Court of Appeals for the District of Columbia Circuit rejected1 an effort by a coalition of competitive broadband service providers and business users of special access services to overturn two 2007 FCC decisions that partly deregulated three incumbent local exchange carriers (ILECs): AT&T, Embarq, and Frontier. The FCC decisions granted forbearance from dominant carrier pricing controls and tariffing requirements for high-speed special access lines used by competing local exchange telecommunications carriers (CLECs) and by businesses. The D.C. Circuit emphasized the discretion that Section 706 of the 1996 Telecommunications Act had given the FCC to facilitate broadband deployment. It found, in applying the deferential “arbitrary and capricious” standard under the Administrative Procedure Act, that the FCC?s decision to “recalibrate the degree of regulation imposed on the ILECs? special access lines,” while “hotly debated and eminently debatable,” was “reasonable and reasonably explained.”

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