[ Text | Word97 ]

  Federal Communications Commission FCC 99-404



Concurring Statement of Commissioner Harold W. Furchtgott-Roth

  In the Matter of Application by Bell Atlantic New York for Authorization Under Section 271 of the Communications Act to Provide In-Region, InterLATA Service in the State of New York, CC Docket No. 99-295.

I concur in this Order granting Bell Atlanticís application to provide long distance services in the State of New York. I agree with the Commissionís conclusion, upon review of the record before us, that Bell Atlantic is in compliance with section 271. Given the absence of any showing that grant of the requested authorization would nonetheless impair the public interest in some way, Bell Atlantic is thus entitled to a grant of authorization.

I reach my conclusion on a different basis from that employed by my colleagues, however. As a general matter, I would have preferred that the Commission place a greater reliance on the negotiation, arbitration and enforcement of contracts between competing telecommunications companies, as provided under the Telecommunications Act of 1996, than does this Order. Consumers are better served by competition among companies who are more, rather than less, free to pursue innovative technologies and services by way of contract, as opposed to being subject to centralized federal regulation.

I. "Track A" versus "Track B"

First, I would like to note the significance of the distinction between "Track A" and "Track B" under section 271, a distinction that I hope will not become (further) blurred as we continue to review applications for authorizations to provide long distance services.

In order to pass the first prong of section 271, a Bell operating company ("BOC") must either have "entered into one or more binding agreements that have been approved under section 252 specifying the terms and conditions under which the [BOC] is providing access and interconnection to its network facilities of one or more unaffiliated competing providers of telephone exchange service. . . .to residential and business subscribers," id. section 271(c)(1)(A), or, if no facilities-based competing provider has requested access and interconnection, the BOC has issued a statement "of the terms and conditions that the company generally offers to provide" such services, approved under section 252(f), id. section 271(c)(1)(B).1

These options are known as Track A or Track B. In essence, what Track A requires is a State-approved interconnection agreement with a facilities-based competitor that provides local exchange service. There is no dispute that Bell Atlantic, by way of its more than 86 approved interconnection agreements with qualifying entities, is eligible for relief under Track A.2 This is the first long distance application in which I have found the presence of a facilities-based competitor, and thus in which my legal analysis goes beyond this threshold issue. Cf. Concurring Statement of Commissioner Harold W. Furchtgott-Roth, In the Matter of Application of Bell South Corp. for Provision of In-Region, InterLATA Services in Louisiana, 13 FCC Rcd 20599 (1998), at 1 (voting to deny on basis of "the absence of an unambiguous facilities-based competitors for residential customers").

With respect to a BOC that "is providing access and interconnection pursuant to one or more agreements described in paragraph (1)(A)," as here, it is "such access and interconnection [that must] meet[] the requirements of" the competitive checklist. Id. section 271(c)(2)(A) (emphasis added). Similarly, the statute defines the Commissionís administrative task under Track A as determining whether the petitioning BOC "with respect to access and interconnection provided pursuant to subsection c(1)(A) has fully implemented the checklist." Id. section 271(d)(3)(A)(i).

This language makes clear that, in the Track A context, the relevant universe of access and interconnection to be compared against the competitive checklist by the Commission is access and interconnection provided according to the specific kind of agreement delineated in subsection (c)(1)(A). In other words, the category of conduct to be considered under the checklist is access and interconnection provided under State-approved 252 agreements with competing facilities-based providers of telephone exchange service to residential and business customers. By contrast, it is not access and interconnection in the abstract, or access and interconnection provided to CLECs generally, or even access and interconnection provided under an approved 252 agreement to parties other than facilities-based competitors in the residential and business telephone exchange service market.

This distinction potentially makes an important difference in the scope of the Commissionís review under the checklist. In this case, it seems that all of Bell Atlanticís interconnection agreements, taken together, cover each of the items mentioned in the checklist. See Evaluation of the NYPSC at 1 (finding that "Bell Atlantic has a legal obligation, under interconnection agreements and NYPSC-approved tariffs, to provide the 14 items required under the Checklist of section 271(c) (2)(B)"). Moreover, if Bell Atlantic meets the checklist for the class of access and interconnection provided under its access and interconnection agreements, as opposed to that provided under access and interconnection agreements that bear the characteristics set out in subsection (c)(1)(A)), then it necessarily meets the checklist as to my subclass of agreements. So, in this application, the point does not appear to be outcome determinative.

In the future, however, it might matter, and here is why. While section 271 subjects access and interconnection provided pursuant to 252 agreements to checklist compliance, not all section 252 contracts need comply with section 271 in order to be valid under the Act. In particular, section 252 contracts may be voluntarily entered into "without regard to the standards set forth in subsections (b) and (c) of section 251," 252(a)(1), which impose the major substantive duties under the Act, such as resale, interconnection, unbundling, and collocation, on BOCs.

As to such negotiated agreements, the State Commission must review the agreements to ensure that they do not "discriminate[] against a telecommunications carrier not a party to the agreement" and that they are "consistent with the public interest." 252(e)(2). For arbitrated agreements, however, the standard is different. The Commission must determine that they meet "the requirements of section 251" and "the standards set forth in subsection (d) of this section," the pricing standards. 252(e)(3). See generally Iowa Utilities Board v. FCC, 119 S.Ct. 721, 727 (1999) ("[T]he incumbent can negotiate an agreement without regard to the duties it would otherwise have under ß251(b)2 or (c). But if private negotiation fails, either party can petition the state commission that regulates local phone service to arbitrate open issues, which arbitration is subject to ß251 and the FCC regulations promulgated thereunder.").

Clearly, then, a company that has applied for section 271 authorization under Track A and demonstrated the presence of a facilities-based competitor may not have interconnection contracts that go to the limit of section 251, but which are nonetheless perfectly valid agreements under section 252. In such a case, I think we probably would be constrained to evaluate the provision of checklist items to the extent that the section 252 agreements bound the BOC to do so.

Congress clearly meant to allow noncompulsory agreements on interconnection, recognizing the advantages of allowing parties to contract around rules and tailor their contracts to individualized needs. It would create, at least, tension with the rest of the statute if we imposed substantive duties upon BOCs under 271 that section 252 allows them to contract around, with a willing party. The 252 option of voluntary contracts, and the provision that allows a party to qualify under the first prong of section 271 so long as it has a valid 252 agreement with a facilities-based competitor, should not be undermined by the section 271 process. In other words, if an interconnection contract meets the requirement of subsection 271(c)(1)(A), then I doubt whether we can look back at the access and interconnection that is being provided pursuant to those agreements and impose 251 type obligations that another part of the statute explicitly exempts.3

II. The Requirements for Compliance With Section 271 Should Not Expand Beyond the Duties Established Under Sections 251 & 252

To preserve statutory harmony between section 271, on the one hand, and sections 251 and 252, on the other hand, the Commission should also take care not to expand regulatory obligations under the checklist in excess of those created under sections 251 and 252.

Apart from at most a few subsections4, the vast bulk of the checklist items in section 271 simply refer back to section 251 and 252. The duties of BOCs under those checklist items should be no different than the duties of all ILECs pursuant to the underlying provisions, sections 251 and 252. That is, in the context of the 271 review process, the Commission can not impose upon individual BOCs, or even BOCs generally, obligations that trace back to 251 and 252 but which are not borne by all ILECs. See generally Concurring Statement of Commissioner Harold W. Furchtgott-Roth, Application of BellSouth Corp., at 2 (criticizing Commission for "imposing on Bell South, ostensibly under the guise of the Competitive Checklist, specifications that are neither statutory under Section 251, nor requirements that have been formally adopted by the Commission in a regulatory proceeding under Section 251").

Indeed, requirements imposed under the checklist that go beyond those established under 251 and 252 are arguably inconsistent with the plain language of the statute. For example, section 271(c)(2)(B)(i) provides that a BOC allow "interconnection in accordance with the requirements of sections 251(c)(2)." That provision by its terms limits interconnection duties to those under section 251. If the Commission nonetheless imposes specific obligations on a BOC under checklist item 1 Ė say, measuring up to performance metrics Ė that are not generally applicable to ILECs under section 251, it may well have exceeded its authority under 271.

III. The Section 271 Approval Process Should Not Supplant Remedies Under 251 & 252

Many of the commenters in opposition to this application are parties to interconnection agreements with Bell Atlantic. They have argued that, unless and until Bell Atlanticís performance pursuant to those contracts reaches a certain level of quality, or is sold at certain prices, the application should not be granted. Conversely, they suggest that as part of the section 271 approval process, the Commission could require Bell Atlantic to do these things for their interconnection parties.

Review of the statutory scheme, however, suggests that the avenue that Congress established for the creation and enforcement of rights under interconnection agreements is not the Commissionís long-distance authorization process under section 271, but the private, State, and federal court proceedings provided for in section 252.

As noted above, parties who wish to interconnect with or buy access from CLECs face an initial choice: they can proceed by way of agreements or they can forgo individualized contracts and simply use generally available terms and conditions. Compare 47 U.S.C. section 271(c)(1)(A) with 271(c)(1)(B).

For those who opt in favor of interconnection agreements, there is yet another choice to be made under the Act: they may enter negotiated agreements, which by law need not grant them all that section 251 would guarantee, see id. section 252(a), or they may invoke the arbitration process in order to pursue all rights under section 251, see id. section 252(b). The State Commission will review negotiated agreements for discrimination and inconsistency with the public interest, see id. section 252(e)(A), and it reviews arbitrated agreements for compliance with section 251 and 252(d), see id. section 252(e)(B).

If the interconnecting party is still not satisfied, it can bring an action in federal court to determine whether the agreement satisfies sections 251 and 252. See id. section 252(e)(6). After agreements have been implemented, parties thereto can seek enforcement thereof with the State Commission or even go to state court with a traditional breach of contract claim.

Section 252 contemplates an extremely limited role for the FCC in all of this. We may act only if a State Commission fails to carry out its responsibilities under section 252 and must then issue an order of preemption before we can assume jurisdiction in matters arising under section 252. See id. section 252(e)(5).

It is thus apparent that Congress created a scheme which relies on either negotiation and arbitration of private agreements, coupled with State Commission approval and federal judicial review. Many of the parties that have complained about Bell Atlanticís performance under their own interconnection agreements have failed to avail themselves of their rights under sections 251 and 252.5 While I do not purport to assert that the section 251/252 process necessarily establishes the exclusive remedy for disgruntled BOC interconnectors, I do view with skepticism assertions of inadequate BOC performance lodged for the first time in the section 271 approval process.

To my mind, the most probative evidence of compliance with the checklist Ė perhaps even prima facie proof -- is the absence of disputes arising under section 252 contracts. Conversely, the best evidence of noncompliance is the presence of such disputes. Record documentation of these disputes, such as complaints filed with State Commissions pursuant to section 252, would only strengthen that showing. Comments filed under 271 by parties who have made no attempt to exercise their rights of recourse under section 252 Ė including the right to go to arbitration to receive the full panoply of benefits under section 251 or to enforce approved 252 agreements--are not particularly persuasive to me, however. If the provision of services pursuant to the 252 agreements were truly inadequate under the bargained-for terms of those agreements, one would think that some complaint would have been lodged to enforce the agreements. And, if the problem is that the interconnecting party does not have a contract that entitles them to things that they would like to have, they should have pursued their right under the statute to arbitrate an agreement that goes to the limits of section 251. The contracting parties had a federal right to go to arbitration over the terms of those agreements and have those agreements reviewed for full compliance with section 251. It is hard to see what a party with an approved arbitrated 252 agreement should get under 271 that it does not already have (apart from the one or two things listed in 271 that are not included in 251, such as E911).

Some parties, however, go even further and seek things that section 251 and its implementing regulations do not now and never did guarantee Ė for instance, particular performance standards for services or penalties for failure to perform. These parties are not entirely to blame, however, as the Commission has made this approach all too tempting. By creating requirements under 271 that seem to expand upon existing 251 obligations, as discussed above, the Commission tends to create a system where more is required of BOCs under 271 than of ILECs under 251. In such a regulatory scheme, competitors will quite rationally attempt to use the 271 process to impose even greater costs on BOCs.

In response to AT&Tís claims that Bell Atlantic-NYís rates for unbundled loops and switches do not meet the pricing standards of section 252 and thus failed section 271 review, the NYPSC made a point very similar to mine. They said:

If AT&T felt aggrieved by the NYPSCís pricing decisions, it should have pursued its putative remedy in federal court pursuant to the 1996 Act. That statute sets forth explicitly the procedures whereby prices for unbundled network elements are determined by the state commissions in the first instance. The statute provides for review via an action in federal district court. In contrast to these explicit procedures, nothing in section 271 authorizes use of its process as a forum in which belated objections to state pricing decisions may be pressed.

NYPSC Reply at 43.

Similarly, parties to interconnection agreements who failed to exercise their statutory right to obtain all the benefits of section 251, and who have lodged no complaints to enforce their rights under section 252 agreements with a body of competent jurisdiction, should not now be heard to complain in the section 271 process. Nothing in section 271, to paraphrase the NYPSC, authorizes the use of its processes as a scheme for the creation of new rights for interconnecting parties or even for the direct enforcement of existing ones. Cf. Iowa Utilities Board v. FCC, 120 F.3d 753, 803-04 (1997) (holding that "the FCC's authority under section 208 does not enable the Commission to review state commission determinations or to enforce the terms of interconnection agreements under the Act"), reversed on other grounds, 119 S.Ct. at 733 (holding issue not yet ripe for review).

 

IV. Section 271 Should Not Nationalize State Performance Criteria

The NYPSC made painfully clear that its performance metrics were not designed, nor ultimately applied, to test compliance with the checklist. Rather, they began as part of a general carrier-to-carrier service proceeding in that State, before this section 271 application was ever filed. See Evaluation of the NYPSC at 4 ("The PAPís metrics grew out of a series of NYPSC proceedings instituted before the 1996 Actís enactment. The 122 wholesale service metrics are derived from over 400 performance metrics developed in a generic carrier-to-carrier service quality proceeding and go well beyond the Checklist requirements. . . . [Some] metrics measure Bell Atlanticís performance in providing the [UNEP] pursuant to state law, regardless of whether the Commission adopts UNEP as it has been defined in New York.").

The NYPSC went out of its way to state that failure to comply with the metrics was not a measure of discrimination for purposes of section 271. See id. at 2 ("[T]he performance reports . . . are not a Checklist report card and, in any event, do not support a claim that Bell Atlantic-BY is providing access to Checklist items . . . in a discriminatory manner."). In other words, the availability of a "meaningful opportunity to compete" is not the same thing Ė indeed, is a lesser standard Ė than the "perfection" that the New York standards would require. Even though Bell Atlantic did not meet the timetable for confirmation of CLEC orders set by the NYPSC (90% on time based on a 2 hour period for electronic orders, and 24, 48, or 72 hours for manually processed orders), the NYPSC nonetheless found that "[o]verall, Bell Atlantic-NYís performance in providing confirmations and rejects in a timely manner enable mass market entry by competitors." Id. at 44.

Many, if not most, of the standards to which the NYPSC has held Bell Atlantic are based on adequate and independent state law grounds Ė specifically, on the authority to regulate wholesale service as "just and reasonable" under the New York Public Service Law. See Evaluation of the NYPSC at 5 n. 4. And the clear view of the PSC was that its standards go well beyond the requirements of 271. See NYPSC Reply at 2-3 ("[T]he Performance Assurance Plan . . . will ensure a level of service quality beyond what is statutorily required for long distance entry. As we stressed. . ., the plan is not intended to define the level of services required to meet the competitive checklist, or to bridge an alleged gap between Bell Atlantic-NYís current level of performance and the level required to meet the Checklist requirement. Therefore, criticisms of Bell Atlantic-NYís performance under the plan have little bearing on Checklist compliance.").

Likewise, the Performance Assurance Plan, which the Commission apparently incorporates as part of its own purely federal anti-backsliding plan, is a tool of state law. The Plan requires a certain level of excellence in New York, but does not necessarily speak to discrimination: "The PAP holds Bell Atlantic-NY . . . to 122 standards that collectively require it to achieve service quality that exceeds the Checklist requirements in specificity and degree." Id. at 3.

We should be careful, then, not to import these performance metrics into the requirements of 271. First, the State that itself adopted them has repeatedly stated that they go further than 271. Second, if we nonetheless use these standards as our sole basis for measuring compliance with 271, we effectively transform one Stateís performance standards into the national standard. Section 271, however, clearly contemplates a State by State process. If the federal standard from here on out is equivalent to New Yorkís standard, however, no application can pass muster as a practical matter until each State follows New Yorkís model. This undermines the unique role that each State commission is supposed to play in each 271 application. If New York wishes to require more of long distance entrants than federal law requires, that is of course its prerogative. But if we import those standards into our review under section 271, we effectively make their individualized requirements the uniform national floor, if not the rule.

Thus, if it is not clear from the face of this Order,6 I wish to say expressly that States are not required to create and implement the same performance measures as New York. Section 271 is clearly a State-by-State process, thus theoretically encompassing 50 different but nonetheless valid ways for States to assess section 271 compliance. We must be cognizant, as Congress obviously was, that States differ in their regulatory approaches and also in the resources that they can devote to these proceedings. Nothing in the text of section 271 requires a State commission to come up with performance metrics or to utilize third-party testers, and we should not import such a requirement into 271 by way of suggestion that, as a federal matter, New Yorkís processes are the only, the maximum, or the minimum standard for demonstrating compliance with section 271. Cf. supra at para. 9 (listing third party testing of OSS and development of defined performance measures and standards, inter alia, as "important to the success of this process").

 

  1. Reliance on Separate Subsidiary for Data Services Is Inappropriate and Unmerited

I concur in the Commissionís conclusion that Bell Atlantic has met the requirement of checklist item four, the inclusion of unbundled local loop transmission in the access and interconnection that it provides under approved 252 agreements. I do so, however, for different reasons.

First, I do not think that the "unique circumstances" cited by the Commission, supra at para. 327, should serve as the basis for considering Bell Atlanticís overall loop performance, as opposed to xDSL-capable loop performance, when assessing compliance with checklist item four. Rather, I think the language of the statute is the basis for this approach. Item four asks whether the access and interconnection provided by Bell Atlantic under its section 252 agreements "includes . . . [unbundled] local loop transmission." Section 271(c)(2)(B)(iv)(emphasis added). That section does not require us independently to evaluate specific kinds of loops. It speaks of "local loops" in the aggregate. I therefore believe that the task required by statute is evaluation of the question whether Bell Atlanticís access and interconnection can be fairly said to include "local loop" transmission, not "xDSL-capable loop" transmission in isolation.

In fact, disaggregation and independent evaluation of xDSL loops would risk the addition of a fifteenth item to the checklist, in violation of the statute. See section 271(c)(4)("The Commission may not, by rule or otherwise, . . . extend the terms used in the competitive checklist."). Accordingly, I doubt whether we could deny an application for failure to satisfy us on this particular kind of local loop, standing alone, as the Commission suggests that it intends to do in the future, see supra at para. 332, unless we could say that their performance with respect to those particular loops was so inadequate as to render their general provision of local loops unacceptable.

Although the Commission attempts to preserve its latitude to treat other applicants differently, the citation of "unique circumstances" can not amend the terms of item four. The cited circumstances are all valid enough, but to my mind they support the substantive conclusion that Bell Atlanticís provisioning of xDSL-capable loops (especially when viewed as part of all local loop performance) is adequate in view of the facts presented by this application. But these circumstances do not go to the legal issue of whether or not to create a separate compliance category for advanced services.

Second, I would not rely on Bell Atlanticís proposal to create a separate subsidiary for data services in making the finding that Bell Atlantic meets the requirements of either checklist item two or four with respect to xDSL loops.7 We are charged with deciding whether, as things now stand, Bell Atlantic "has fully implemented the competitive checklist." Id. section 271(d)(3)(A)(i). If we cannot make this finding, "[t]he Commission shall not approve" the application. Id. section 271(d)(3).

Given the past tense of the statutory language on checklist implementation and the mandatory nature of Congressí instructions on approval, I fail to see how we can rely, even in part, on a future separate subsidiary as a basis for granting the application today. See generally Bechtel v. FCC, 10 F.3d 875, 878 (D.C.Cir. 1993) (remanding case to Commission for new adjudication because one factor among the several applied was found unlawful).8

In what can only be an implicit recognition of the foregoing, the Commission is somewhat vague as to the extent of its reliance on Bell Atlanticís "commitment." The Commission states in one place that it does not rely on the proposal, see supra at para. 40, but then sets out the details of the proposal in its substantive discussion of the issue, suggesting that Bell Atlanticís future compliance somehow depends upon following through with its suggestion, see id. at para. 333 & n. 1041.

I would have made clear that Bell Atlantic is under no obligation Ė for either current or future compliance purposes Ė to establish a separate subsidiary for DSL services. As explained above, the statute constrains us from approving this application based on assurances of future implementation of a checklist item. On the other hand, if Bell Atlantic is now in compliance with item four, on the sole basis of its local loop performance to date as documented on this record, then it is under no legal duty to do anything more than what the checklist requires. If approval is warranted on this record, then Bell Atlantic need go no further and create a separate subsidiary. The Commission cannot have it both ways. Bell Atlantic must either implement the proposal before it can gain section 271 authorization or, if authorization is granted now, it is under no binding federal obligation to do so.

Third, in so far as the Commission itself has chosen to address the xDSL issue under the terms of item four, and not item two, the Orderís repeated references to "nondiscrimination" in this context are off the statutory mark. Specifically, I fail to see how the creation of a separate subsidiary as a putative remedy for discriminatory access can be based on item four, as the Order does. Item two, to be sure, requires "[n]ondiscriminatory access to network elements," section 271(c)(2)(B)(ii), but item four contains no such language. The issue there is whether the access and interconnection provided by the BOC "includes. . . [l]ocal loop transmission." Section 271(c)(2)(B)(iv). I am thus not sure how the Commission can legally require a showing of either "nondiscrimination" or the creation of a separate affiliate, see supra at para. 332, before it will find compliance with item four.

Fourth, I note that, while other parts of the Act contemplate separate affiliates for RBOCs, neither 271 nor sections 251 and 252, do so. In section 272, Congress specified those circumstances under which RBOCs must establish separate affiliates: manufacturing activities, origination of interLATA telecommunications services, and interLATA information services. Section 272(a)(2)("Services For Which A Separate Affiliate Is Required"). The Commission finds no violation of section 272 in this application. See supra at para. 406. It is presumptuous, at best, for the Commission to require the creation of such structures for yet a different service than required by the Act.

Fifth and finally, while I will faithfully implement any legislative mandate concerning separate affiliates, I would not create them myself on the merits, as does the Commission today. I do not share the majorityís confidence in structural separation as a mechanism for either preventing or policing discriminatory access. A sophisticated corporation intent on discriminating against its competitors can, with the help of good lawyers and accountants, construct a corporate arrangement that complies with any set of regulatory rules and still achieve its ends.

VI. Department of Justice Evaluation

On a closing note, I wish to make clear that, in reaching my conclusions on this application, I have deliberately afforded "substantial weight," section 271(d)(2)(A), to the evaluation submitted by the Department of Justice. The Department did not, however, purport to evaluate the facts in light of the text of the section 271 checklist. See, e.g., Evaluation of the Department of Justice at 13 n. 25 ("We have examined these facts to assess their impact on the development of competition in New York and have not, however, attempted to determine whether they establish compliance with the legal requirements of the competitive checklist or the Commissionís rules, matters which we leave for the Commissionís judgment."). And their evaluation has no "preclusive effect" on our decisions under the checklist. See section 271(d)(2)(A).

On some of the issues raised by the Department, my reading of the section 271, as opposed to my opinion about DOJís assessment of the underlying facts, led me to a different result than that reached by the Department. Most hotly debated among these issues was the provision of xDSL-capable loops, which the Department felt unable to sanction based on the facts before it. Because I believe that the terms of checklist item four oblige us to consider loop performance in the aggregate, I did not evaluate the DSL data in the same way that the Department did, i.e., on a disaggregated basis.9

VII. Conclusion: The Statutory Scheme Emphasizes Contracts & State-By-State Review, Not Direct Regulation & Centralized Commission Oversight

As I have tried to illustrate, the general statutory scheme before us creates a process that emphasizes individualized contracts for access and interconnection and the role of State Commissions in the process of creating local and long distance competition.

This scheme contrasts with another approach towards commerce, which I might call the "rule of central regulation." Under this approach, governmental entities partition commercial activity into lawful and unlawful acts. That partitioning is codified in rules and those rules are enforced by governmental action. Prices, terms, and conditions are determined by the government, and commercial activity must be governmentally sanctioned, both ex ante and ex post. Agreements between and among parties have no independent force. Disputes are brought directly to the government, and the government passes upon the details of each individual piece of commerce.

But, as outlined above, a review of the language and structure of the statutory scheme with respect to local and long distance competition shows that this sort of central regulatory design was not adopted by Congress in the 1996 Telecommunications Act. Rather, their design reflects what I would term a "rule of contract." Under that rule, the conduct and lawfulness of commercial activity are largely governed by private agreements between and among contracting parties. Government may prescribe certain behavior as unlawful, but unless so prescribed commercial activity is presumed lawful. And government may require minimum standards for the enforceability of contracts. The contracts themselves can even provide for the handling of disputes arising thereunder. The primary role of government, in this scenario, is to resolve contractual controversies and to enforce contractual rights. This system recognizes that one of the great efficiencies of the "rule of contract" is that contracting parties have powerful incentives to perform their obligations pursuant to the agreement and also to detect and complain about any nonperformance by the other party.

As noted at the outset of this statement, my approach to applications filed pursuant to section 271 differs from that taken by the majority. In accordance with what I perceive to be the theme of the legislative framework under which we operate, I would place greater reliance on the largely contractual processes created thereunder for the creation and enforcement of interconnection and access rights. I juxtapose this approach to the one that I see the Commission tending toward, that is, the recreation under section 271 of mechanisms to do essentially the same thing as sections 251 and 252, but from a position of centralized oversight by this Commission. This latter approach, to my mind, undermines many of the carefully crafted provisions of the Telecommunications Act of 1996 relating to local competition and the provision of interLATA services. It is for this general reason that I can only concur in todayís Order.




1. Section 271(c)(2)(B), the checklist section, tracks this distinction between access and interconnection provided pursuant to a specific interconnection agreement and access and interconnection generally offered. Id. (Subjecting "[access or interconnection provided [see 271(c)(1)(A)] or generally offered [see 271(c)(1)(B)] by a [BOC] to other telecommunications carriers" to the checklist) (emphasis added).

2. Notably, the language of Track A requires that the competitors in question be not just unaffiliated but also in the business of telephone exchange service. See section 271(c)(1)(A)(referencing "unaffiliated competing providers of telephone exchange service. . . but excluding exchange access"); see also section 153(16), (47)(defining "exchange access" and "telephone exchange service"). Whether data-CLECs providing advanced services such as DSL qualify as providers of telephone exchange service, but not of exchange access, is a potentially important and currently open question. See Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 FCC Rcd. 24011 (1998), remanded, US West Communications, Inc. v. FCC, No. 98-1410 (D.C. Cir. Aug. 25, 1999). I need not decide this here, however, as the record reflects that Bell Atlantic has entered into interconnection agreements with facilities-based providers of "plain old" local telephone service.

3. This issue also affects the weight that one might give to the comments of parties who file in opposition to a section 271 application. For instance, those who operate under generally available terms and conditions or whose interconnection agreements do not confer a contractual right to the BOC performance they seek under section 271 may stand in a different stead than those who have pursued claims that a BOC has failed to perform as required by agreement. See infra Part III.

4. The seventh checklist item mandates nondiscriminatory access to 911 and E911 services; this duty is not included under either section 251 or 252(d). All the rest refer directly back to sections 251 and/or 252 or are covered in substance by rules already promulgated under those provisions.

5. From what I gather, only four companies have sought formal relief for asserted wrongs by Bell Atlantic in the performance of access and interconnection contracts. Focal Communications, Global NAPS, and Metropolitan Fiber Systems filed complaints regarding reciprocal compensation with the NYPSC; MCI filed a petition pursuant to section 252(e)(6) in the Northern District of New York alleging pricing errors by the NYPSC; and MCI has also filed a contract enforcement claim with the NYPSC. As for the reciprocal compensation disputes, I agree with the Order that Bell Atlantic is not in violation of this Commission's regulations under section 251(b)(5). See supra at paras. 378-379. And under section 271, the best (maybe even the exclusive) forum for resolution of MCI's pricing claims is federal court. Finally, we have little to no record evidence on the specifics of MCI's contract claim, nor has that claim has not been adjudicated by the NYPSC. Even if MCI could at this time show noncompliance with the contract, that would be the only instance, as best I can tell, of Bell Atlantic's failing to perform under an interconnection agreement. I do not think such a showing would be enough to counter the rest of the evidence showing Bell Atlantic's satisfaction of its contractual interconnection obligations.

6. Fortunately, the Commission has been careful to say that the State performance metrics do not in themselves create any sort of federal floor or test under section 271. See supra at para. 55. On the other hand, however, I fear that the Commission's extensive review of that data throughout this Order leaves the impression that the metrics, while not dispositive, are somehow necessary to a checklist analysis. I would not encourage future 271 commenters to file this sort of data when they have not exhausted or even employed the legal options under sections 252 and 252 for redress of their grievances with the BOC's provision of services. See infra Part III.

7. The structure of the entity proposed by Bell Atlantic has no basis in section 271. Instead, the proposed entity appears to be an imitation of one of the illegitimate conditions placed on the transfer of licenses from Ameritech to SBC.

8. Reliance on this proposal would also create problems under our procedural rules, see Public Notice (Sep. 29, 1999), as well as with our decisions in past 271 Orders that promises of further performance are not to be considered. Indeed, if the Commission is not relying on the proposal, then it is unclear why the Tauke letter was not simply struck from the record in conformity with the "complete when filed" rule.

9. Moreover, many of the DSL concerns raised by the Department have been addressed in other proceedings, such as the recent UNE remand and the line-sharing rulemakings.