Talk America Inc. v. Michigan Bell Telephone Co., No. 10-313; U.S. Supreme Court; opinion by Thomas, J.; concurrence by Scalia, J.; decided June 9, 2011. On certiorari to the U.S. Court of Appeals for the Sixth Circuit.
The Telecommunications Act of 1996 requires incumbent local exchange carriers (LECs) — i.e., providers of local telephone service — to share their physical networks with competitive LECs at cost-based rates in two ways relevant here. First, 47 U.S.C. § 251(c)(3) requires an incumbent LEC to lease “on an unbundled basis” — i.e., a la carte — network elements specified by the Federal Communications Commission (FCC) to allow a competitor to create its own network without having to build every element from scratch. In identifying those elements, the FCC must consider whether access is “necessary” and whether failing to provide it would “impair” the competitor’s provision of service. § 251(d)(2). Second, § 251(c)(2) mandates that incumbent LECs “provide … interconnection” between their networks and competitive LECs to ensure that a competitor’s customers can call the incumbent’s customers, and vice versa. The interconnection duty is independent of the unbundling rules and not subject to impairment analysis.
