D.C. Circuit Rejects Petitions to Strike Down FCC’s 2019 Unbundling and Resale Forbearance Order

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The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has rejected petitions from both Incompas and the California Public Utility Commission challenging the Federal Communications Commission’s (FCC or Commission) 2019 Order dealing with unbundling and resale requirements. The 2019 Order relieved price-cap incumbent local exchange carriers (LECs) of their obligation to unbundle time-division multiplexed (TDM) equipment and unbundled network element (UNE) Analog Loops and to offer telecommunications services that incumbent LECs offer at the retail level for resale at wholesale rates. These rules, created in the 1996 Telecommunications Act, were intended to protect consumers from the purported monopoly once held by incumbent LECs.  In its Comptel d/b/a Incompas v. FCC decision, adjudicated by a three-judge panel, the DC Circuit reasoned that the FCC reasonably explained its forbearance decision as the market for voice services has become much more competitive recently because of the emergence of voice services available through cable, fiber and VoIP and thus those rules are no longer necessary to protect consumers.

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