8th Circuit Upholds FCC Deregulation of Business Data Services

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The 8th Circuit U.S. Court of Appeals has denied petitions filed by two separate groups seeking review of a 2017 FCC Order that alters the Commission’s regulations for business data services (BDS).  The 2017 BDS Order:  (1)  established a “competitive market test”  which determined that price regulation is no longer required if either 50 percent of buildings in a county are within a half mile of a location served by a competitive provider, or, 75 percent of the census blocks in a county have a cable provider present; (2) excused ILECs, after a transition period, from having to file tariffs with the FCC in a “competitive market;” (3) kept in place, in non-competitive markets, price regulation for lower speed TDM connections; (4) updated price cap regulation, where it remains, by reducing the cap annually, beginning on December 1, 2017, by 2 percent on a going-forward basis to account for productivity gains; and (5) leveled the regulatory playing field for ILECs by extending uniform forbearance from certain rules that had previously been granted unevenly.  The 2017 BDS Order also concluded that certain BDS constitute private carriage rather than common carriage.  One group consisted of ILEC petitioners and the other group consisted of CLEC petitioners. The former challenged new price cap rates in the order while the latter challenged most of the other changes in the order, both on the adequacy of the notice and on the merits. The appeals court did grant the CLECs’ petition in part, regarding the notice, but denied all other requests from the two groups.

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