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Technical[2]Eg%Technical Document Style O g% W4I O g*%&    Technical[3]Eg%Technical Document Style O g% W4I O g''(   Technical[4]Eg%Technical Document Style O g% W4I O g&)*   2DTechnical[1]Eg%Technical Document Style O g% W4I O g4+$,     Technical[7]Eg%Technical Document Style O g% W4I O g&-.  . Technical[8]Eg%Technical Document Style O g% W4I O g&/0  . Format DownloadFormat Downloaded Documentiޛ r5- XX    \ #d6X@`7Ͽ@#2~r.rL2a2Agendaa1AgendaAgenda Items7D yP ) I. a3Agenda"S^2CoddȧCCCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,OhC2CC!CCCCCCCCCCo8dddddȐYYYYYN8N8N8N8oddddooooddoddddzoddYYYYoYYYYdddddooNoNoNCNodCo8CCC8oooddȐYYYoNoNoNoNCCCooooȐdYYNF2ldCdddddd,-(-(ZZT"Ԍ V-The legislative history is not illuminating.  X-Faced with a choice between two plausible readings of the statute, it is appropriate to resort to legislative history for guidance. In this instance, the exercise is futile. The grandfathering provisions were rewritten by the HouseSenate Conference Committee. The House and Senate Commerce Committee reports predate the formulation that was ultimately enacted and do not purport to explain the meaning of language that was crafted at a later date. The Conference Report describes the grandfathering provision by using essentially the same words found in the provision itself; no additional guidance is added.  X -Only the floor debates provide specific guidance on the provision at issue, but the net result is to leave the matter unsettled. Specifically, on the day the House of Representatives and the Senate approved the Telecommunications Act of 1996, directly contradictory statements appeared in the Congressional Record on the precise question of whether the statute prohibited a grandfathered BOC from acquiring the assets of unaffiliated alarm  Xy-monitoring service entities._ yB {O-ԍCompare 142 Cong. Rec. S689 (daily ed. February 1, 1996)(Statement by Senator Pressler, subscribed to by Senator Hollings and Senator Dole: "The language ... is intended to include a prohibition on the acquisition  {O-of the underlying customer accounts and assets ....") with id. at H1158 (Statement of Congressman Hyde: "[G]randfathered BOCs may grow their alarm monitoring business through customer or asset acquisitions ....")  {O-and id. at E192 (Statement of Congressman Oxley)._ As a result, the conflicting views of individual legislators, and the apparent good faith reliance thereon by the alarm industry and by Ameritech, lend no strength to either of the competing arguments here.  V-Only one reading of the statute makes sense. Despite the ambiguous language and legislative history, I find one interpretation of the  X-provision to be far more persuasive than the other. The answer lies in an effort to discern the  X-logic of the underlying congressional policy.! ~B yO-ԍThis search for the underlying "logic" of a statutory provision should not be confused with an exercise in freelance policymaking. The Commission's responsibility in a case such as this is not to decide what is the "best" policy but merely to use such tools as are available to ascertain and then effectuate the policy that Congress has chosen.  All parties agree that Congress intended to prevent a grandfathered BOC from obtaining control of an alarm monitoring service provider through a stock (equity) transaction.  Xe-The obvious question is whether it would have made sense for Congress to prohibit that step,  XP-but simultaneously to permit a grandfathered BOC to achieve effectively the same result by structuring the transaction as an asset acquisition. Why would Congress want to distinguish"; f !,-(-(ZZ{" between these two situations, and thus concern itself only with the structure of the transaction and not its substance? Ameritech has not tendered any logical answer to this question, the Commission has not provided one, and I have been unable to think of one. Without such a logical  X-explanation, reading the statute to create a distinction between these two situations makes no  Xv-sense. Fortunately, a more logical reading is available: Congress meant to authorize grandfathered BOCs to continue in the alarm business and to grow that business only  XH-through competition, not acquisitions.  V -This interpretation is strengthened by the final clause of the disputed sentence.  X -This interpretation of the statute is bolstered by the presence of the clause at the conclusion of Section 275(a)(2). This clause states that the prohibition regarding equity interests and financial control does not "prohibit an exchange of customers [of the grandfathered BOC] for the customers of an unaffiliated alarm monitoring service entity." The majority's interpretation of "entity" would render this clause superfluous. If a grandfathered BOC can obtain any or all of a company's assets, including customer accounts, so long as it does not acquire a legal entity, then there would have been no reason for Congress to add a clause saying that one particular kind of asset customer accounts can  X-be obtained through an exchange.L"B yO-ԍAmeritech has suggested that the phrase is intended to permit taxfree customer exchanges not just through asset purchases but also through acquisition of equity in subsidiary or special purpose corporations. Ameritech Comments at 89. On this view, the exception is designed to enable a grandfathered BOC to acquire "equity interest[s]" in unaffiliated alarm monitoring service companies that possess no assets other than the  yO-customer accounts they wish to exchange with the BOC. But neither the legislative history nor text of the statute supports this reading of Congressional intent. There is no indication that Congress believed the industry was populated by companies whose sole assets were customer contracts, and our record is bereft of any evidence that any alarm company with this characteristic exists. In the context of a limited exception to a ban on BOC alarm monitoring service activities, it seems farfetched to conclude that Congress was trying to save Ameritech money on its tax bill.L Yet statutes must be "construed where possible, so that  X-no provision is rendered inoperative or superfluous, void or insignificant." #( و {O-ԍMail Order Ass'n of America v. United States Postal Serv., 986 F.2d 509, 515 (D.C. Cir. 1993); see  {O -also Mackey v. Lanier Collections Agency & Serv., 486 U.S. 825, 837 (1988).  The better reading is that this phrase establishes a minor, but carefully delimited,  X-exception to the logical policy I have identified: reliance on self-generated growth is required  X-except in the sole case of "an exchange of customers" between a grandfathered BOC and an  X-alarm monitoring service entity. This reading gives meaning to each part of the statute, and it simply makes more logical sense. I cannot believe that Congress would have bothered to create this narrow exception if it had also intended to allow a grandfathered BOC to buy up"g #,-(-(ZZ" all the customer contracts it desired, so long it structured the transactions as purchases of  X-"assets" rather than of stock.  V-The correct interpretation must also comport with the overall thrust of Section 275(a). My interpretation of the statute fits better than the majority's with the legislative intent of Section 275(a) as a whole. Section 275(a)(1) reflects a policy decision, made by Congress, that BOC involvement in the alarm monitoring service business is, in the short run, a bad  XH-thing.$zHB yO -ԍIn most other lines of communicationsrelated business, Congress chose to rely on various structural and  {O -nonstructural safeguards to protect telephone ratepayers and promote fair competition. See, e.g., 47 U.S.C.  260 (telemessaging), 272 (interLATA telecommunications and information services, 273 (manufacturing), 274 (electronic publishing). It established preconditions for the Bell companies' entry into "inregion" long distance (47 U.S.C.  271) but specifically rejected a "date certain" time for that entry. Only the alarm industry won the preservation for five years of an absolute prohibition subject to the grandfathering prohibition on BOC entry. While the conflicting floor statements may cancel each other out as to the precise question of whether asset acquisition by a grandfathered BOC is permitted, read in their entirety both the House and Senate Committee reports suggest that Congress viewed its  X -restrictions on BOC participation in the alarm business as procompetitive.% B yO-ԍH. Rep. No. 204, 104th Cong., 1st Sess. 87 (1995); S. Rep. No. 23, 104th Cong., 1st Sess. 8 (1995).#x6X@`7X@#Ѽ In light of this broad policy determination, it makes the most sense to interpret the exception for Ameritech narrowly. This is consistent with a reading of the statute which would allow Ameritech to stay in the industry and grow through competition, but not through acquisition. Conversely, the majority seems to believe that Congress was perfectly willing, subject only to the antitrust laws, to have Ameritech buy up all the alarm monitoring service customer contracts in the country, so long as the sellers either reconfigure any separate affiliates into divisions before the transaction or maintain shell corporations after selling all or substantially all of the alarm monitoring assets. This cannot be. There is absolutely no evidence that Congress had any reason to care about the structure of such transactions  X-whether they were equity or asset deals, or whether they were hostile or friendly.,&d B yOQ-ԍAmeritech suggests that perhaps Congress intended the statute to allow friendly acquisitions while  yO-barring hostile takeovers. Ameritech Comments at 1213. I do not find any support for this interpretation in the language, structure, or purpose of the provision. In addition, federal law generally tends to take a neutral stance toward hostile takeovers, as the Commission discussed in adjusting its broadcast assignment and transfer policies  {Oq!-to avoid undue interference with hostile takeovers. Proxies and Tender Offers, 59 R.R. 2d 1536, 1540, 155157 (1986)(citations and subsequent history omitted). Thus, we would expect that Congress would be more much explicit (or at least include a statement to this effect in the legislative history) if it intended to alter such neutrality and take affirmative steps to protect the incumbent management of publicly traded alarm companies  {O$-against the wishes of their shareholders (i.e., their owners).  yO%&-Beyond that, even Ameritech's own construction of the statute which forecloses purchase of any equity interest in a competitor alarm company would prohibit both friendly and unfriendly equity transactions., Indeed" &,-(-(ZZ" the structure of the deal is wholly irrelevant to the impact such a combination would have on competition in the industry, or on fairness to Ameritech, or on any other conceivably relevant factor.  V-Equitable considerations provide the final proof. Finally, my construction of Section 275(a)(2) is also the one that best serves considerations of equity. Grandfathered BOCs may avail themselves of whatever latitude is afforded by Section 275(a)(2). Meanwhile, for a period of five years, the other BOCs are prevented from entering this market at all. A logical explanation for this disparity is that Congress did not want to force a BOC that was already in the alarm business to exit the business; such a company should not be prevented from taking care of its existing customers and from expanding its business through competition. Acquisitions, however, are a different  X -matter, whether cast in terms of assets, stock, or any other mechanisms.' B yON-ԍUnder this interpretation, linedrawing difficulties would inevitably arise. But it is not difficult to determine on which side of the line to place a transaction in which the grandfathered BOC has acquired all of another company's alarm monitoring service operations and assets, including customer accounts. The majority's interpretation does not eliminate the need for linedrawing. If Ameritech becomes a primary lender or creditor of another alarm monitoring service corporation (a legal entity), we will be required to  yO6-draw a line to determine when such a relationship amounts to "financial control." #x6X@`7X@# I cannot believe that Congress intended to prevent six BOCs from entering the alarm business altogether, but to allow one BOC to acquire as much of the existing alarm industry as it wished, through asset purchases. I find it much more likely that Congress intended to allow the grandfathered BOC to compete, but not to acquire (with the limited exception for "exchange[s] of customers"). This is the interpretation that I believe to be most consistent with the structure and language of the statute as well as the policy considerations that appear to have guided Congress's hand.  V-Conclusion. Because the majority has chosen an interpretation of Section 275(a)(2) that I do not believe is required by the statutory language or supported by any logical policy explanation, I respectfully dissent.