CLECs Try to Save Unbundled Dark Fiber Transport
September 17, 2020 | by Andrew Regitsky
On November 25, 2019, the FCC released a Notice of Proposed Rulemaking (NPRM) in Docket 19-308, in which it decided the time had come to forebear from enforcing the remaining section 251(c)(3) unbundled network element (UNE) requirements. As we have previously discussed, initial opposition to the proposal culminated in an industry agreement between CLECs and ILECs that would phase out UNEs in all but the most rural areas. That agreement is expected to serve as a blueprint for a Commission UNE order, expected later this year.
However, there is no industry agreement on one important UNE - unbundled dark fiber transport - which has become an important component of CLEC networks.
Dark fiber transport is deployed fiber optic cable between incumbent LEC wire centers that has not been “lit” through the addition of optronic equipment that would make it capable of carrying telecommunications. This dark fiber facility is typically referred to as “interoffice dark fiber.” The Commission’s transport unbundling rules define when an incumbent LEC is required to unbundle its interoffice dark fiber and make it available to a requesting carrier. Where so obligated, the incumbent LEC must lease its unlit fiber, subject to availability, enabling the competitive LEC to use such dark fiber as if it were part of its own fiber network. Thus, after deploying its own electronics to light the dark fiber, the competitive LEC is able to provision service to end users served from the wire center to which the unbundled dark fiber transport terminates. (NPRM, at para 70.).
INCOMPAS explains how vital unbundled dark fiber transport is to its CLEC members:
They use it to connect their networks, including for example, last-mile fiber-to-the-home networks, schools and libraries through the E-rate program, and other broadband providers’ networks. These network investments—and the consumer, business, broadband providers, and educational and governmental customers they serve—will be stranded without continued access to ILEC dark fiber transport should the Commission adopt its UNE dark fiber proposal in the NPRM. Moreover, there are no alternatives in many situations, and where there are, the record shows that replacing this dark fiber would be extremely expensive and difficult to accomplish due to the numerous barriers to deployment competitors face. (Docket 19-308, INCOMPAS ex parte notice, filed June 19, 2020, at pp. 1-2.)
CenturyLink claims, however, there are many substitutes for unbundled dark fiber transport:
Contrary to the arguments of some CLECs, UNE dark fiber transport does not offer unique capabilities not otherwise available. In fact, CLECs have multiple reasonable substitutes for UNE dark fiber, including Wavelength services, commercial dark fiber, and self-deployed fiber. Each of these alternatives allows CLECs the capability, flexibility, and control they seek in purchasing UNE dark fiber transport. This inherent substitutability is demonstrated by the fact that CLECs generally utilize UNE dark fiber transport to provision Wavelength services that are very similar to the commercial Wavelength services they can buy from ILECs and other providers. Moreover, in 2019, CenturyLink sold millions of dollars of lit Wavelength services to wholesale customers for this very purpose (i.e., trunking traffic between ILEC central offices). And, as a purchaser, CenturyLink buys Wavelength services to fill in its out-of-region fiber network, supplemented with commercial dark fiber leased from national CLECs, regional providers, fiber providers, electric utilities, municipalities, and other CLECs. Other CLECs can and do make similar purchases. Thus, reasonably efficient CLECs are not impaired without UNE dark fiber transport, particularly to wire centers within a half mile of competitive fiber. (Docket 19-308, Reply Comments of CenturyLink, filed March 20, 2020, Executive Summary).
With a Commission order expected soon, it appears CLECs believe they are likely to lose on this issue and now suggest a way for keeping embedded unbundled dark fiber transport.
Nonetheless, notwithstanding INCOMPAS’ disagreement with the NPRM’s proposed finding of no impairment with respect to dark fiber, given that the Commission provided competitors notice of its proposal to eliminate the availability of UNE dark fiber in certain instances when it published its NPRM in the Federal Register on January 6, 2020, INCOMPAS believes that so long as dark fiber UNEs ordered before that date remain undisturbed and subject to the UNE rules, it would be reasonable for the Commission to subject orders placed after that date to the NPRM’s UNE dark fiber proposal, as the investments made since that date that would become stranded should be relatively limited. Given that some competitors may need some flexibility with respect to recently-ordered UNE dark fiber, or to fulfill and finalize orders that have already been placed, an ordering provision of six months after the effective date of an FCC Order would be appropriate. The Commission should also make clear, however, that dark fiber UNE orders that were placed prior to the publication of the NPRM, but that were not fulfilled until after the publication of the NPRM (or in some cases still have not been fulfilled), will continue to be subject to the Commission’s pre-existing UNE dark fiber rules. (Docket 19-308, INCOMPAS ex parte notice, filed June 19, 2020, at pp. 2-3.).
ILECs reject this proposal arguing that UNEs were never designed to remain available forever. They reassure the FCC that they are more than willing to make dark fiber transport available through market-based negotiations and are willing to negotiate an appropriate transition away from unbundled dark fiber.
It should be clear by now that this FCC is perfectly okay with forcing CLECs to negotiate commercial agreements with ILECs to obtain network facilities such as unbundled dark fiber transport, even if they end up paying higher prices. Thus, CLECs must be prepared to pay these prices or change their business plans, since even their most compelling arguments for keeping the remaining UNEs are likely to fall on deaf ears.
That is why it is important now for CLECs to analyze their networks to determine the fiber available in the markets they serve to determine the most efficient way of serving their customers. The best way to do so is by working with FiberLocator.
FiberLocator, a division of CCMI, gives you access to fiber maps, lit buildings and data centers. It provides data that’s difficult to find in one place, including hundreds of carrier’s fiber maps, thousands of data centers and over 2 million fiber lit buildings. Researching telecom and colocation information becomes much faster, simpler, more accurate and more complete with FiberLocator. FiberLocator greatly streamlines your workflow and saves considerable time and resources in the search for fiber optic maps, lit buildings and data centers.
FiberLocator is a great resource as you negotiate a world largely without UNEs.