C.F.R. » Title 47 » CHAPTER I—FEDERAL COMMUNICATIONS COMMISSION › SUBCHAPTER B—COMMON CARRIER SERVICES › PART 51—INTERCONNECTION › Subpart D—Additional Obligations of Incumbent Local Exchange Carriers

47 C.F.R. § 51.317

Standards for requiring the unbundling of network elements

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(a) Proprietary network elements. A network element shall be considered to be proprietary if an incumbent LEC can demonstrate that it has invested resources to develop proprietary information or functionalities that are protected by patent, copyright or trade secret law. The Commission shall undertake the following analysis to determine whether a proprietary network element should be made available for purposes of section 251(c)(3) of the Act:

(1) Determine whether access to the proprietary network element is “necessary.” A network element is “necessary” if, taking into consideration the availability of alternative elements outside the incumbent LEC's network, including self-provisioning by a requesting telecommunications carrier or acquiring an alternative from a third-party supplier, lack of access to the network element precludes a requesting telecommunications carrier from providing the services that it seeks to offer. If access is “necessary,” the Commission may require the unbundling of such proprietary network element.

(2) In the event that such access is not “necessary,” the Commission may require unbundling if it is determined that:

(i) The incumbent LEC has implemented only a minor modification to the network element in order to qualify for proprietary treatment;

(ii) The information or functionality that is proprietary in nature does not differentiate the incumbent LEC's services from the requesting telecommunications carrier's services; or

(iii) Lack of access to such element would jeopardize the goals of the Act.

(b) Non-proprietary network elements. The Commission shall determine whether a non-proprietary network element should be made available for purposes of section 251(c)(3) of the Act by analyzing, at a minimum, whether lack of access to a non-proprietary network element “impairs” a requesting carrier's ability to provide the service it seeks to offer. A requesting carrier's ability to provide service is “impaired” if, taking into consideration the availability of alternative elements outside the incumbent LEC's network, including elements self-provisioned by the requesting carrier or acquired as an alternative from a third-party supplier, lack of access to that element poses a barrier or barriers to entry, including operational and economic barriers, that are likely to make entry into a market by a reasonably efficient competitor uneconomic.

[70 FR 8952, Feb. 24, 2005]
Notes of Decisions
Cited in 17 cases, 1997–2010 · leading case: MCI Telecomm. Corp. v. GTE Nw., Inc., 41 F. Supp. 2d 1157 (D. Or. 1999).
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MCI Telecomm. Corp. v. GTE Nw., Inc., 41 F. Supp. 2d 1157 (D. Or. 1999). · cites it 2× “319 (“Rule 319”) and, by implication, 47 C.F.R. § 51.317 as well. AT & T, — U.S.”
United States Telecom Ass'n v. Fed. Commc'ns Comm'n, 290 F.3d 415 (D.C. Cir. 2002). · cites it 4× “” Local Competition Order, 15 FCC Rcd at 3725, ¶ 51 (emphasis added); 47 C.F.R. § 51.317 (b)(1). In weighing the availability of alternative network elements, the Commission noted that it would examine five factors — cost, effect on timeliness of entry, quality, ubiquity, and…”
Iowa Utils. Bd. v. Fed. Commc'ns Comm'n, 120 F.3d 753 (8th Cir. 1997). · cites it 3× “, ¶ 281 ; 47 C.F.R. § 51.317 . Although we just upheld the Commission’s definition of the term “technically feasible,” we reject the Commission’s use of this term to determine what elements must be unbundled.”
Iowa Utils. Bd. v. Fed. Commc'ns Comm'n & United States of Am., 219 F.3d 744 (8th Cir. 2000). “The petitioners also request that the court vacate 47 C.F.R. § 51.317 , regarding the identification of additional unbundled network elements, and that the court reaffirm its previous decision vacating the superior-quality rules and the additional combination of network elements…”
S. New England Tel. Co. v. Dep't of Pub. Util. Control, 803 A.2d 879 (Conn. 2002). · cites it 5× “§§ 251 (d) (3) and 253; 47 C.F.R. § 51.317 (2001). *18 Like the Connecticut reform scheme, the 1996 federal act contains a provision to enable new market entrants to gain access to an incumbent carrier’s facilities in order to offer competition in local telephone service.”
Pac. Bell Tel. Co. v. California Pub. Utils. Comm'n, 621 F.3d 836 (9th Cir. 2010). “” 47 C.F.R. § 51.317 (b). 10 . Under the Hobbs Act, this court lacks jurisdiction to rule on a collateral attack of an FCC order.”
MCI v. Bell Atl., 36 F. Supp. 2d 419 (D.D.C. 1999). · cites it 2× “See 47 C.F.R. § 51.317 (1997). 1. Dark Fiber In the proceeding below, the Arbitrator held that BA-DC is not obligated to supply MCI with access to its “dark fiber” on an unbundled basis.”
MCI Telecomm. Corp. v. Michigan Bell Tel. Co., 79 F. Supp. 2d 768 (E.D. Mich. 1999). “47 C.F.R. § 51.317 . Here, the Arbitration Panel concluded that Ameritech must provide MCI access to its dark fiber, holding as follows: Under FCC Order ¶ 281, there is a presumption in favor of unbundling if it is technically feasible.”
At & T Commc'ns of the Sw., Inc. v. Sw. Bell Tel. Co., 86 F. Supp. 2d 932 (W.D. Mo. 1999). “47 C.F.R. § 51.317 (b). 16 In this way, § 51.”
Pac. Bell Tel. Co. v. California Pub. Utils. Comm'n, 597 F.3d 958 (9th Cir. 2010). “” 47 C.F.R. § 51.317 (b). 10 . Under the Hobbs Act, this court lacks jurisdiction to rule on a collateral attack of an FCC order.”
US West Commc'ns, Inc. v. Jennings, 304 F.3d 950 (9th Cir. 2002). “707, holding that setting specific prices intrudes on the states’ right to set the actual rates pursuant to § 252(c)(2) and that the FCC was estopped from arguing otherwise; (4) vacated 47 C.F.R. § 51.317 (establishing standards under which an ILEC must unbundle or make…”
US West Commc'ns, Inc. v. AT & T Commc'ns of the Pac. Nw., Inc., 46 F. Supp. 2d 1068 (D. Or. 1999). “319 (“Rule 319”) and, by implication, 47 C.F.R. § 51.317 as well. AT & T, 119 S.”
Show all 17 citing cases →
— 47 C.F.R. § 51.317(b)(2) — 2 cases
At&T Commc'ns of Virginia, Inc. v. Bell Atl.-Virginia, Inc., 197 F.3d 663 (4th Cir. 1999).
At&t Commc'ns of Virginia, Inc., & MCI Telecomm. Corp., a Delaware Corp. McImetro Access Transmission Servs. of Virginia, Inc., a Virginia Corp. v. Bell Atl.-Virginia, Inc. Hullihen Williams Moore, in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n I. Clinton Miller, in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n Theodore v. Morrison, Jr., in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n State Corp. Comm'n, Commonwealth of Virginia, & Richard Cullen, Attorney Gen. of Virginia, Intervenor-Defendant, & Fed. Commc'ns Comm'n, Party in Interest. MCI Telecomm. Corp., a Delaware Corp. McImetro Access Transmission Servs. of Virginia, Inc., a Virginia Corp., & At&t Commc'ns of Virginia, Inc., Intervenor-Plaintiff v. Bell Atl.-Virginia, Inc. Hullihen Williams Moore, in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n I. Clinton Miller, in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n Theodore v. Morrison, Jr., in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n State Corp. Comm'n, Commonwealth of Virginia, & Richard Cullen, Attorney Gen. of Virginia, Intervenor-Defendant, & Fed. Commc'ns Comm'n, Party in Interest. MCI Telecomm. Corp., a Delaware Corp. McImetro Access Transmission Servs. of Virginia, Inc., a Virginia Corp. At&t Commc'ns of Virginia, Inc. v. Bell Atl.-Virginia, Inc., & Hullihen Williams Moore, in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n I. Clinton Miller, in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n Theodore v. Morrison, Jr., in His Off. Capacity as Comm'r of the Commonwealth of Virginia State Corp. Comm'n State Corp. Comm'n, Commonwealth of Virginia, & Richard Cullen, Attorney Gen. of Virginia, Intervenor-Defendant, & Fed. Commc'ns Comm'n, Party in Interest, 197 F.3d 663 (4th Cir. 1999).
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