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Garvey Schubert Barer Legal Update, August 18, 2010.

On July 15, 2010, CRC Communications of Maine, Inc. (CRC) and Time Warner Cable Inc. (TWC) filed a petition pursuant to sections 1.1 and 1.2 of the FCC’s rules and section 253 of the Communications Act of 1934, as amended (the Act) requesting that the FCC issue an order preempting the Maine Public Utilities Commission’s (Maine PUC) interpretation of section 251 of the Act. The Maine PUC previously concluded that until the rural exemption in section 251(f) is terminated, rural local exchange carriers (RLECs) are not required to negotiate agreements with competitive carriers under sections 251(a) and 251(b), and that such requests are not subject to arbitration under section 252.

The petitioners argue that the Maine PUC decision denied CRC’s basic right to interconnect and exchange traffic pursuant to sections 251(a) and 251(b) of the Act, and in turn, blocked CRC from offering wholesale telecommunications services and TWC from offering its interconnected VoIP services in certain rural areas of Maine. CRC and TWC assert that the Maine PUC’s decision is inconsistent with the plain language of the Act and FCC precedent.

The petitioners request that the FCC preempt the Maine PUC’s order and direct it to compel the RLECs to negotiate with the competitive carries and, in the event that such negotiations are not successful, to commence an arbitration proceeding without delay. Absent such action, the competitive carriers argue, other RLECs may decide that they are free to ignore their obligations under sections 251(a) and 251(b) of the Act, and other state commission may endorse such efforts.

The FCC seeks comment on the petition, and in particular, on the arguments presented in the petition regarding interconnection obligations under section 251 and 252. Noting that the National Broadband Plan recommended that the FCC clarifies certain interconnection rights of competing carriers of rural incumbent telephone companies, the FCC seeks comment on whether it should temporarily delay acting on that item to enable it to address the broader set of related interconnection issues raised by the petition at the same time. See Public Notice, DA 10-1423, WC Docket No. 10-143 (rel. Jul. 29, 2010).

Interested parties may file comments on the petition on or before August 30, 2010 and reply comments on or before September 13, 2010.