News & Publications

Garvey Schubert Barer Legal Update, August 18, 2010.

On July 13, 2010, UTEX Communications Corporation (UTEX) filed a renewed petition for preemption of the jurisdiction of the Public Utility Commission of Texas pursuant to section 252(e)(5) of the Communications Act of 1934, as amended, and section 51.803 of the Commission’s rules. In its petition, UTEX requests that the FCC “preempt the jurisdiction of the Public Utility Commission of Texas (the “PUCT”) and arbitrate the pending interconnection disputes between UTEX and Southwestern Bell Telephone Company d/b/a AT&T Texas.” UTEX’s original preemption petition was denied by the FCC’s Wireline Competition Bureau on October 9, 2009. In the Bureau’s Order, however, the Bureau expressly invited the parties to re-file a request for preemption if the PUCT fails to resolve the arbitration within nine months of the Bureau’s Order. The FCC has established the pleading cycle for comments on the petition. See Public Notice, WC Docket No. 09-135, DA 10-1398 (rel. Jul. 28, 2010).

In its renewed petition, UTEX claims the “PUCT has failed to resolve the arbitration by the deadline established by the Commission.” On July 23, 2010, the PUTC responded to the Renewed Petition and explained that the PUCT arbitrators working on the interconnection arbitration filed a notice with the PUCT “stating they expect to complete the proposal for award by August 13, 2010, and will file another status report by August 6 if the award has not been issued by that date.”

UTEX has requested in the renewed petition that, in the event the FCC chooses not to preempt the PUCT once again, the FCC should, at a minimum, determine the regulatory issues that “will inform the outcome of the PUCT so that [the] threshold issues are uniform throughout the country and will prevent additional, innovation-numbing litigation that pervades the industry today.” Among the issues laid out by UTEX are: (i) does UTEX have the right to interconnect and mutually exchange traffic as a LEC under the Act when at least one but possibly more ISPs are involved in a call?; (ii) when the ISP purchases LEC service from UTEX for origination and termination of traffic wholly within the LATA, is the service provided by UTEX “telephone exchange service” or “exchange access service?”; (iii) for all traffic deemed subject to 251(g), can UTEX require that all such traffic be passed as jointly provided access traffic, or alternatively, can AT&T require that UTEX be liable for all such traffic to AT&T even though UTEX is acting purely as a LEC?; (iv) can AT&T avoid negotiating and arbitrating interconnection language enabling Session Initiation Protocol (SIP) Interconnection merely because it has refused to invest in any technology or equipment capable of passing traffic using SIP?; (v) is UTEX prohibited from providing transit service to other carriers, leaving the incumbent as the only competitive alternative?; and (v) can UTEX require transit interconnection to be part of an arbitrated interconnection agreement with reciprocal compensation terms?

Interested parties may file comments on the petition on or before August 12, 2010 and reply comments on or before August 23, 2010.