Your grandfather's dark fiber

Hmm, an appeal decision released while E-mpa® and SECA were holding meetings. Channeling my inner conspiracy theorist, I thought maybe the FCC was trying to slide one by while no one was looking.

But no, it's a pretty boring decision.  Actually, I think the ruling adds some clarity on the eligibility of dark fiber.  In 2002.  The order is clear that they are talking about the 2002 rules, so we can't try to extrapolate to today's dark fiber.

It does perpetuate a part of the "Tennessee test" that only a lawyer could say with a straight face: exclusive use .  Boise ISD built a dark fiber WAN connecting their buildings.  USAC said it wasn't eligible because they had exclusive use of the fiber.  The FCC said, "Boise ISD and IDACOMM [the service provider] did not have an exclusivity arrangement limiting the use of the IDACOMM network to Boise ISD."  Now in this case, IDACOMM probably did put dozens of pairs up on the poles and maybe resold them to others, but the actual pair that Boise leased?  The FCC bought the argument that "IDACOMM retains the right to provision new circuits for additional clients on the fiber currently utilized by Boise ISD."  As a practical matter, to whom are they going to sell a circuit that terminates in a school building?  And how are they going to get someone else's light (and therefore circuit) onto that pair?  The dark fiber must be connected to district modulating electronics (otherwise it's lit fiber, which has regulatory consequences beyond the E-Rate), so how does the service provider put someone else's traffic on that pair?

I find the whole "exclusive use" test to be weird, but it's even weirder to apply it to a dark fiber WAN, which does not have a significant amount of equipment on the client's premises.

But it doesn't matter anyway, since the eligibility of dark fiber has changed drastically since 2002.  Twice.