UNEs Order Has 'Chilling Effect' on Fiber Deployment: Sonic

The FCC's 2020 order on unbundled network elements (UNEs) rules "has had a chilling effect" on fiber to the home deployment, said Sonic Telecom in reply to comments opposing its 2021 petition for reconsideration of portions of the order Monday in docket 19-308 (see 2209160070). Sonic sought reconsideration of the order's findings that there's "no impairment and grant of forbearance for unbundled DS0 Loops and unbundled dark fiber." USTelecom continued to express opposition, but consumer advocacy groups and CLECs urged the commission to grant the petition to promote competition.

Facilities-based competition "has emerged and grows stronger every day," said USTelecom. The petition "regurgitates arguments the commission already rejected” and "lacks a valid basis to present new facts and arguments that could have been raised in the original proceeding,” it said: The FCC “correctly determined that CLECs are not impaired without unbundled access to dark fiber transport in wire centers within a half mile of alternative fiber.” Sonic disagreed, saying the 2020 order failed to "fully consider important arguments that were raised in the underlying proceeding” and “made conflicting findings on the impact unbundled DS0s and dark fiber have on investment.”

Facilities-based broadband competition is “anemic at best,” said Public Knowledge and The Utility Reform Network in joint comments. Phasing out DS0 loops in urban areas and dark fiber transport "will further impair the ability of competitors to serve residential broadband markets," PK and TURN said. Sunsetting UNE rules “has not yet produced a flurry of new facilities-based broadband competition,” they said: “Hypothetical competitors remain hypothetical.”

The FCC’s impairment analysis “did not consider whether the fiber that is present can actually be used,” PK and TURN said, saying eliminating UNEs gives ILECs “carte blanche to set prohibitive contractual terms, jack up prices and delay addressing problems.” The forbearance is "anti-competitive" and "removes the incentive for ILECs to deploy more fiber," said Raw Bandwidth, noting “at least twenty CLECs” that participated in the original proceeding opposed forbearance.

Existing UNE rules "provided important protection" for CLECs from certain "abuses" through pricing and contracting terms from ILECs, Raw Bandwidth said. ILECs are "literal monopolists for this element," it said: The FCC should “require ILECs to achieve natural forbearance through copper retirement before they can cut off CLECs' access to DS0 UNE loops in a given geographic area.” ILECs "have never quantified the alleged burden they face from competitors’ use of, and payment for, facilities that otherwise go unused," Sonic said. USTelecom disagreed, saying the analysis wasn't flawed and the “extraordinary action of modifying a forbearance decision ... is justified here.”

The Electronic Frontier Foundation backed the petition, saying it "lays out clearly the detrimental impact” repealing unbundled network elements would have on urban markets. "The original premise behind UNEs was to facilitate competitive access to incumbent markets," EFF said, but the "advantages incumbents possessed were effectively insurmountable." The FCC’s order "declined to consider marketplace differences in assuming a carrier can self-deploy transport where there is nearby fiber," Sonic said.