Supporting the Position that the FCC Order Establishing Interconnection Requirements Does not Violate the Takings Clause of the United States Constitution

WHEREAS, the Federal Communications Commission (FCC) has set forth certain requirements as to how incumbent local exchange carriers (ILECs) shall allow competing local exchange carriers (CLECs) to interconnect with ILECs and resell their services in an order issued August 8, 1996 in In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98;

WHEREAS, various parties have appealed this decision to the United States Court of Appeals for the Eighth Circuit at Iowa Utilities Board v. FCC, and argued, inter alia, that the interconnection rates set by the FCC, and other provisions, have taken the property of ILECs without just compensation, thereby, confiscating their property in violation of the United States Constitution;

WHEREAS, NASUCA and other parties have intervened in that case and intend to address certain issues raised in that appeal;

WHEREAS, NASUCA is concerned that, if the Court of Appeals were to find that the Order of the FCC is an unconstitutional taking, this could require consumers to compensate ILECs for their stranded costs and reduce the benefits of competition received by consumers in this and other industries;

WHEREAS, NASUCA will have the opportunity to file a brief before the Court of Appeals for the Eighth Circuit in opposition to ILECs and other parties;

THEREFORE BE IT RESOLVED that NASUCA supports the position that the FCC Order establishing Interconnection requirements does not violate the takings clause of the United States Constitution;

THEREFORE BE IT RESOLVED that NASUCA opposes the position that ILECs, and other incumbent public utilities, are entitled as a matter of constitutional law to full recovery of their embedded costs in their public utility operations;

BE IT FURTHER RESOLVED that NASUCA authorizes its Executive Committee to develop specific positions and to take appropriate actions consistent with the terms of this resolution. The Executive Committee shall notify the membership of any action taken pursuant to this resolution.

Approved by NASUCA:

San Francisco, California

November 19, 1996

Submitted by:

NASUCA Telecommunications Committee

Martha S. Hogerty (MO), Chair
Shirley Guntharp (AR)
Regina Costa (CA)
Michael McRae (DC)
Jack Shreve (FL)
Alice Hyde (IA)
Timothy Seat (IN)
Karen Long (NC)
Theresa Czarski (MD)
Mike Travieso (MD)
Wayne Jortner (ME)
Garth Morrisette (MN)
Philip McClelland (PA)
Elliot Elam (SC)|
Suzi Ray McClellan (TX)
Rob Manifold (WA)