Strategies to Promote Advanced Telecommunications Capabilities

I. INTRODUCTION "[Section 706 of the 1996 Telecommunications Act] is an invitation to `grab the brass ring' of new technology and should not be used simply as an opportunity to pick the low level fruit."(1) Section 706 of the 1996 Telecommunications Act (Act)(2) directs both the Federal Communications Commission (FCC) and state public utility commissions (PUCs) to encourage deployment of advanced telecommunications capabilities (ATCs) "on a reasonable and timely basis ... to all Americans."(3) Section 706 focuses on strategies that promote competition and remove barriers to infrastructure investment. It rigorously defines ATCs as capable of providing switched two-way voice, data, and video service.(4) Section 706 must be understood on its own terms and within the context of the purpose and structure of the Act. The House Conference Report states that the purpose of the Act is "to provide for a procompetitive [sic], de-regulatory [sic] national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition, and for other purposes."(5) Part II of this Article provides a brief background on section 706 efforts to date and notes the tendency to see broadband deployment issues as an extension of preexisting interindustry disputes. Part III suggests that promoting ATC deployment is a more complex matter than it may appear at first. Many ATC issues are primarily loop issues regarding which state commissions--and even local communities--have particular expertise and concern. Part IV describes the interests of state government in ATCs and methods various states use to promote them. Part V proposes a strategy for advancing Congress's goals in section 706 that would take advantage of various parties' strengths and should minimize the delay occasioned by interindustry disputatiousness and political wrangling. II. SECTION 706 IS A CALL FOR ACTION, NOT AN INVITATION FOR ARGUMENT The FCC has considered section 706 in several proceedings, including the assessment required by section 706(b), and in action on petitions filed under section 706.(6) In its report on broadband deployment, the FCC concluded that deployment was progressing reasonably, but that the FCC would continue to pay attention to the matter and promote deployment.(7) Specifically, the FCC noted: We certainly have not reached the ultimate goal that all Americans have meaningful access to advanced telecommunications services. Indeed, at such an early stage of deployment of many broadband services, it is difficult to reach any firm judgment about the state of deployment. Nonetheless, we are encouraged that deployment of advanced telecommunications generally appears, at present, reasonable and timely. We base this conclusion, in part, on the large investments in broadband technologies that numerous companies in the communications industry are making. We expect that these investments will lead, in the near future, to greater competition in the broadband market and to greater deployment of these services in a manner that is more efficient and includes all Americans.(8) The report was greeted with some disappointment by rural advocates and others.(9) In 1998, the FCC tentatively rejected requests that digital subscriber loop (DSL) facilities be exempted from unbundling requirements, unless those facilities are operated by a separate data subsidiary.(10) On remand from the Supreme Court,(11) in November 1999, the FCC determined that incumbent LECs are not required to unbundle packet switching like DSL service at this time, except in a limited circumstances.(12) The states or the FCC may still require unbundling if they make other findings. Subsequently, the FCC did, however, require the incumbent LECs to "unbundle the high frequency portion of the loop" even where the incumbent LEC's voice customer is served by digital loop carrier facilities. …