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Monday, April 24, 2006

The "Courageous CLEC" Fights for Real Interconnection Agreement Enforcement under the 1996 Act

Core Communications, Inc., dubbed the Courageous CLEC by Jonathan Askin of pulver.com, is heading to the Court of Appeals for the Third Circuit to fight for real interconnection agreement enforcement as required by the 1996 Telecom Act.

A key issue is whether a CLEC must pursue relief at a state public service commission before going to federal court. The BOCs have effectively precluded real interconnection agreement enforcement by forcing CLECs to litigate at the state commission before going to federal court, even though nothing in the 1996 Telecom Act requires such a wasteful step. State PUCs generally have no authority to award damages, hear tort claims, or even require reasonable discovery. By creating a legal morass at the state commissions, BOCs have precluded competitors from virtually any successful enforcement action.

In his March 21, 2006 opinion, federal judge Timothy Savage stated that "strict construction of the" 1996 Act "demonstrates that Congress did not intend the states to make decisions regarding contractual disputes between parties to such agreements." He also strongly suggested that private rights of action to enforce contractual rights under federal interconnection agreement belong in the courts, not state executive agencies. Click here to take a look at Judge Savage's opinion.

Parties interested in effective enforcement should watch this case carefully. Without effective enforcement, even the best FCC rules on net neutrality, VoIP, and other matters will be effectively worthless.

Effective private enforcement of interconnection agreements and other federal requirements is critical to non-ILEC segments of the industry, and the Courageous CLEC is giving the industry another chance give us all the 1996 Act that Congress intended, not what the BOCs have made it.

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