South Carolina cable operators can lease their unused fiber
optic capacity without incurring common-carrier requirements, according to state
The state Public Service Commission has ruled that leasing
"dark fiber" to regulated telephone companies does not make cable companies
telephone utilities, as long as the electronics needed to activate the unused plant are
The commission was acting on a request by the South
Carolina Cable Television Association, which wanted to ensure that its members would not
be designated for common-carrier requirements by the PSC for simply leasing unused
"The statue is so broad in South Carolina that there
was a concern there," said Cole, Raywid & Braverman partner Karlyn Stanley, a
Washington, D.C.-based attorney who represented the association. "So they decided
that it was the better part of valor to ask."
In its ruling, the PSC said it believed that allowing cable
to lease dark fiber would "encourage the availability of additional facilities, which
can be used to provide telecommunications services to many locations in the state of South
"We're delighted with the outcome," SCCTA
executive director Nancy Horn said. "The subject of dark fiber has come up in other
states, and we wanted to make sure that our members were operating properly."
During the proceedings, National Cable Television
Association director of strategic telecommunications policy Rick Cimerman argued that
federal law defines a telecommunications service as "the offering of
telecommunications for a fee directly to the public."
In leasing dark fiber, however, operators are not providing
anything "directly to the public," he testified.
The commission said it was persuaded by Cimerman's
comparison of cable operators with Lucent Technologies, which provides the switches that
telephone companies use to complete calls, but which is not regulated by South Carolina as
a common carrier itself.
Stanley said the PSC ruling would likely be cited in
regulatory proceedings in other states where operators are looking at leasing excess
"State commissions often look at what other regulators
are doing on cutting-edge issues," Stanley said. "Competitive local-exchange
carriers, competitive access providers, Internet-service providers -- they all need dark
fiber. As the demand increases, other commissions may look at what South Carolina