I concur in the decision to grant SBC and Ameritech authorization to transfer lines pursuant to section 214 and licenses pursuant to section 310(d). I dissent in full, however, from the adoption of the conditions on these transfers.
By this Order, the Commission imposes legally dubious, overbroad, potentially unenforceable, privately negotiated conditions on a merger that it is statutorily unauthorized to review, and assessment of which was governed by no clear procedural or substantive standards. The item itself is the end-result of an extraordinary procedural approach to the review of license transfers that has never before been applied and unlikely ever again to be followed. Such a process raises an unfortunate appearance of disparate and unfair treatment of these applicants.
Indeed, today's transfer of licenses from Ameritech to SBC writes a new chapter in ad hoc Commission procedures. More than a year ago, these companies applied for consent to the transfers. A public process with notice and comment ensued. Thousands of pages of comments were submitted. Surely, that was enough information upon which to base a decision either to approve the applications, to approve them with conditions, or to designate them for a hearing, as provided in the Communications Act.
Apparently, however, that information was insufficient. These companies were then advised by the Chairman of the FCC, in a highly publicized letter, that their license transfers would not be approved. Why not? Perhaps the license transfers would violate written Commission rules? No. Perhaps they would violate specific substantive duties of the carriers under the Communications Act? No. As it turns out, no specific laws or rules were violated by the proposed transfers. Only the vague sentiments of a few individuals--not even of the full Commission--of what the public interest required were thought to be unsatisfied by the record.
What ensued were months of private meetings between the applicants and Commission staff. The public was not invited and they did not have (and still do not have) access to the substance of the discussions that transpired in those meetings. What emerged was a set of conditions proposed by SBC that only those willing to contort the English language could call "voluntary."
These "voluntary commitments" -- which, if not met, result in "voluntary" payments by the merged entity to the U.S. Treasury -- are complex, far-reaching, and very costly to apply and enforce. They require conduct of the merged entity that is not expected of any other telecommunications carrier in the country. They even go so far as to contradict the generally applicable standards of the Communications Act. Consequently, I find it difficult to understand how these conditions could serve any reasonable interpretation of the public interest. The American consumer will likely pay a high price for these misguided conditions.
In sum, and as described in full in my separate statement, today's Order exemplifies my oft-stated concerns with this Commission's review of license transfer applications that happen to be filed by merging entities. The Commission: imposes conditions that lack an express statutory foundation -- indeed, that affirmatively violate specific and fundamental statutory directives; foresees harms so vague and speculative that the actual nexus between those harms and the remedies imposed is difficult to ascertain; promulgates costly company-specific regulations; requires conduct by companies that it could not require outright in a rulemaking; creates new processing schemes to suit its fancy in individual transfer proceedings, raising questions about the neutrality of its decisionmaking; lacks any clear substantive standards for merger review, which creates problems of fair notice, increases the potential for arbitrary decisionmaking, and even raises constitutional issues.