Telco Rivals Dismiss Each Other's Arguments in FCC 2016 BDS Tariff Order Remand Review

Windstream, Incompas and Sprint said AT&T and Verizon misconstrued a 2006 U.S. Court of Appeals for the D.C. Circuit BellSouth ruling in comments (see 1712050061) asking the FCC to reverse a 2016 business data service order against ILEC tariff plans. "AT&T’s misinterpretation of BellSouth and mischaracterization of the record ... would drastically narrow the scope of Section 201(b) and hobble the Commission’s ability to enforce the Communications Act’s 'just and reasonableness' requirement in a BDS marketplace that is largely without ex ante regulations and, at least in the near term, largely without facilities-based competitors to the ILECs," said the rivals' joint reply posted Wednesday in docket 15-247 after court remand of legal challenges (see 1711030050 and 1708300026). "ILECs would be able to cement their control of the BDS marketplace and undermine the Commission’s prediction in [a 2017] BDS Order of competition emerging in the medium term." AT&T disputed the rivals' ("Windstream") two main initial arguments: "Windstream dismisses the D.C. Circuit’s BellSouth decision as limited to its facts, but Windstream never grapples with the court’s holding that the voluntary nature of both the carrier’s offer and the customer’s acceptance effectively preclude any finding of harm under any of the statutory reasonableness standards. Second, Windstream claims the Tariff Order was supported by the record, but in fact the Commission completely ignored extensive evidence that these plans did not, and could not, foreclose competition." AT&T argued the FCC's deregulatory 2017 BDS overhaul undermines the tariff order, as it cited "the existence of widespread competition based on data from the 2013-2015 time period -- when these [tariff] plans were in effect -- thus directly refuting the 'lock-in'/foreclosure theory on which the Tariff Order was premised." Verizon said rivals recycled arguments. "Despite the Commission’s finding of 'intense competition,' the Commenters repeat their claim that ILECs 'dominate the market for low-bandwidth BDS,'" Verizon replied. "They repeat their debunked lock-up claims. And they repeat their arguments -- which failed last year -- against our current, deemed lawful tariffed discount plans. In doing so they rely on stale Commission statements made before the Commission completed its comprehensive data analysis and ignore the Commission’s recent statement that the Tariff Investigation Order 'may no longer represent the position of the FCC.'"