At issue in the FCC’s proceeding are the definitions of "necessary" and "impair" under Section 251 of the 1996 Telecommunications Act. In comments filed today with the FCC, CompTel stated, the "necessary" and "impair" standards must be interpreted in a manner that furthers the use of the wholesale market entry strategy through UNEs..

CompTel emphasized that the application of the "necessary" and "impair" standards "compels the availability not only of the elements previously identified by the Commission, but also of elements useful for the provision of DSL [digital subscriber loops] and other data services." The association recommended that the FCC make several changes to its definition of loops, switching, and the NID [network interface device] to ensure that competitors have nondiscriminatory access to high-capacity loops (including dark fiber), DSL-equipped and DSL-capable loops, and packet switching functionalities.

"Prior to divestiture, thanks to the wholesale market, long distance carriers were able to enter the market and bring consumers the benefits of competition," said H. Russell Frisby, Jr., CompTel’s President. "Today, in the local market, the Telecom Act compels the incumbent monopolies to be the wholesale providers because they are the only carriers in a position to do so through their economies of density, connectivity, and a scale that cannot yet be duplicated by competitors."

CompTel stated that the Commission should conclude that "impairment" means that a denial to a network element would impose a material increase in cost, a material delay, or would materially restrict the number or scope of customers likely to receive the service any requesting carrier seeks to offer.

Additionally, CompTel proposed that the "necessary" standard is only applicable if a network element has a proprietary component. If proprietary, then access to that component is necessary if a material loss in the functionality of the network element would result without access to its proprietary aspect.

"Clearly, the necessary standard is closely related to impairment. In ordinary parlance, asking whether an element is necessary can be the flip side of asking whether a carrier is harmed or impaired by not having the element. CompTel believes that it is reasonable to interpret both necessary and impair using common sense definitions and in a manner broad enough to promote UNE competition as envisioned in the Act," stated Robert McDowell, CompTel’s Assistant General Counsel.

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