- On June 5, 2012, the U.S. Court of Appeals for the Third Circuit affirmed a Philadelphia district court’s reversal of the Pennsylvania Public Utility Commission (PUC) rejection of Verizon’s application of the term “fiber-based collocator” which a component of unbundling impairment analysis. The district court agreed with Verizon that competitive local exchange carriers (CLECs) are properly classified as fiber-based collocators if they lease Verizon’s dark fiber strands under an “indefeasible right of use” and supply the optronics equipment necessary to light the fiber and carry the resulting traffic in and out of Verizon’s wire center. The PUC appealed, arguing that a CLEC must own a full fiber-optic cable or lease strands from an ILEC and operate those facilities before it can be treated as a “fiber-based collocator” for unbundling purposes. Deferring to the FCC, which filed an amicus brief supporting Verizon, the Third Circuit affirmed summary judgment for Verizon. “Since [47 C.F.R.] § 51.5 is ambiguous … we defer to the interpretation offered by the FCC because it is consistent with the regulation and reflects the agency’s fair and considered judgment,” the court concluded. The court reasoned that “the FCC’s guidance indicates that it is the existence of an IRU generally — received from either the ILEC or another carrier, like a CFP — that is the critical component in determining whether dark fiber strands leased by a CLEC qualify it for treatment as a ‘fiber-based collocator’ under § 51.5.” Verizon Pa. Inc. v. Pa. Pub. Util. Comm’n , No. 11-2712 (3d Cir.).
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In the courts
- Arent Fox LLP
- Ross A. Buntrock , Jonathan E. Canis , Michael B. Hazzard , Stephanie A. Joyce and Adam D. Bowser
- June 11 2012
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