Wanted: Further News of Dark Fiber Litigation

[Gordon Cook <cook () path net>]

The following is a direct quote from George Gilder's long article in the
December 7, 1992 Forbes ASAP.  Can anyone offer any pointers as to the current
status of this court action?

The 'Dark Fiber' Case 

"That need has driven EDS into an active role as an ex parte pleader in
Federal Case 911416, currently bogging down in the United States Court of
Appeals for the District of Columbia as the so-called "dark fiber" case.  On
the surface, the case -- known as Southwestern Bell et al. v. the Federal
Communications Commission and the U.S. Department of Justice -- pits four
regional Bell operating companies against the FCC.  But the legal maneuvers
actually reflect a rising conflict between the Bells and several large
corporate clients over the future of communications.


Beyond all the legal posturing, the question at issue is whether fiber
networks should be dumb and dark and cheap, the way EDS and other customers
like them, or whether they should be bright and smart and "strategically"
priced, the way the telephone companies want them.   
       
On the side of intelligence and light are the phone companies -- Southwestern
Bell, U.S. West, Bell South and Bell Atlantic.  The forces of darkness include
key officials at the FCC and such companies as Shell Oil, the information
services arm of McDonnell Douglas and long-distance network provider Wiltel,
as well as EDS.   Most of the four-year course of the struggle has passed
unnoticed by the media.

In the fall of 1990, the FCC ruled that the phone companies would have to
offer dark fiber to all comers under the rules of common carriage.  Rather
than accept this new burden, the phone companies petitioned to withdraw from
the business entirely under what is called a Rule 214 application.  Since the
FCC has not acted on this petition, the Bells are preparing to go to court to
force the issue.  Their corporate customers are ready to litigate as well.


It is safe to say that none of the participants fully comprehend the
significance of their courthouse confrontation.  To the Bells, after all is
said and done, the key problem is probably the price.  Under the existing
tariff, they are required to offer this service to anyone who wants it for an
average price of approximately $ 150 per strand of fiber per mile per month.
As an offering that competes with their T-3 45-megabit-per-second lines and
other forthcoming marvels, dark fiber threatens to gobble up their future as
vendors of broadband communications to offices, even as cable TV preempts them
as broadband providers to homes.  Since the Bells' profits on data are growing
some10 times as fast as their profits on voice telephony, they see dark fiber
as a menace to their most promising markets."