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Re: Implementation of Cable Act Reform Provisions of the Telecommunications Act, CS Docket No. 96-85

During my confirmation, I was asked by a Senator whether I would implement communications law as written by Congress even if I personally disagreed with the outcome. I promised that I would, for that was the duty of a regulator. Consistent with that promise, I respectfully dissent from Part II of this Report and Order which requires that a local exchange carrier's (LEC) service area must "substantially overlap" that of the incumbent cable operator in a franchise area before the LEC can be said to provide effective competition under Section 623(l)(1)(D) of the Communications Act. As Commissioner Furchtgott-Roth persuasively argues in his dissenting statement, this result cannot be squared with the plain language of the statute.

Having said this, I will note that I can appreciate the desire of the majority to read this provision more broadly. One can reasonably argue that it is not desirable to deregulate a monopoly cable provider when it faces only minimal competition in its franchise area. I would also concede that if the other three "effective competition" provisions of Section 623(l) did not specifically include pass or penetration tests, the Commission might have the latitude to assume that Congress intended some type of substantial overlap test. Given the context of the section 623(l)(1)(D), however, I see no such latitude. It is clear from the text of section 623(l) that where Congress intended the Commission to apply a pass or penetration test, it included the test in the statute. Congress, apparently, chose not to include a pass or penetration standard in the LEC effective competition test for whatever reason, and it is improper for the Commission to assume that Congress could not have intended what it wrote. Although we might think that some possible ramifications of interpreting the statute as written are extreme, this agency cannot substitute its judgement for that of Congress.