Windstream, BT, Incompas, Ad Hoc Ask FCC to Stay BDS Order, Act by Friday

Critics asked the FCC to stay its recent deregulatory business data service order (see 1704200020), and said they would treat inaction by Friday as denial. The record shows incumbent telcos are the only facilities-based provider in 86 percent of buildings with total bandwidth demand of 50 Mbps or less "because it is almost never economically feasible to build a new last-mile connection" in such situations, said a joint stay motion posted Monday in docket 16-143 by Windstream, BT Americas, Incompas and the Ad Hoc Telecom Users Committee. They said competitors must buy last-mile connections from the ILEC to compete, and also often must buy dedicated BDS transport from ILECs. The FCC traditionally used price-cap regulation to control rates, but new leadership "abruptly changed course without seeking further comment" and "adopted results-driven new rules divorced from well-established market analysis principles, precedent and" the previous commission's 2016 proposals, said the motion. ILECs will be allowed to detariff Aug. 1 "and to replace discontinued BDS with higher-cost alternatives, creating the prospect of enormous disruption and uncertainty as the industry migrates to a new paradigm of Commission indifference to competition," said the groups, arguing they met the requirements for a stay: "Moreover, a stay would not harm the ILECs, and instead would avoid massive and permanent losses that would be unrecoverable in the event of reversal." The FCC, stay movants and ILECs didn't comment. The FCC rarely approves such requests, leaving critics to seek court action. The 8th U.S. Circuit Court of Appeals was recently chosen by lottery to hear challenges to the BDS order (see 1706160022), but Incompas and Sprint said Friday they would ask that court to transfer that case to the D.C. Circuit, which has before it an AT&T challenge to a 2016 BDS tariff investigation order. Incompas and Sprint opposed an FCC motion the D.C. Circuit remand the tariff case to the agency (see 1706260015).