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S ' Federal Communications Commission, ukAppellee  S '  S '[/AT&T Corporation, et al., aIntervenors  S0' =Appeal of an Order of the [Federal Communications Commission  S' "Laurence H. Tribe argued the cause for appellants. With him on the briefs were Jonathan S.  Sj' x&Massey, Michael K. Kellogg, Charles R. Morgan, William B. Barfield, M. Robert Sutherland, Jim O.  SD'Llewellyn and David G. Frolio. Walter H. Alford entered an appearance.  S' "Christopher J. Wright, General Counsel, Federal Communications Commission, argued the cause  S' xfor appellee. With him on the briefs were Daniel M. Armstrong, Associate General Counsel, John E.  S' xQIngle, Deputy Associate General Counsel, Laurence N. Bourne, Counsel, and Brian M. Hoffstadt, Special Counsel.  S4' "David W. Carpenter argued the cause for intervenors AT&T Corporation, et al. With him on the  S' x7briefs were Peter D. Keisler, Mark C. Rosenblum, Roy E. Hoffinger, Donald B. Verrilli, Jr., Anthony C.  xEpstein, Ian Heath Gershengorn, William Single, IV, Sue D. Blumenfeld, David P. Murray, Charles C.  xIHunter, Catherine M. Hannan, Daniel L. Brenner, Neal M. Goldberg, David L. Nicoll, Richard J.  xMetzger, Emily M. Williams, Genevieve Morelli, Robert J. Aamoth, Richard S. Whitt, Riley M. Murphy,  Sp' xDanny E. Adams, Brad E. Mutschelknaus, John J. Heitmann, Jonathan E. Canis and James J. Freeman.  SJ'Theodore. Whitehouse entered an appearance.  S ' "Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, Philip D. Bartz, Acting  S!' xAssistant Attorney General, Catherine G. O'Sullivan, Nancy C. Garrison, Robert B. Nicholson, Mark B.  S"' xStern, Jacob M. Lewis, and Alisa B. Klein, Attorneys, were on the briefs for intervenor United States of America.  S:%' "William T. Lake, John H. Harwood, II and Robert B. McKenna were on the brief for intervenor U S WEST, Inc.  S'' "uKenneth S. Geller, Donald M. Falk, Harold S. Reeves, Theodore A. Livingston and John E.  S('Muench were on the brief for intervenor Ameritech Corporation."(0*0*0*'"Ԍ S'Before: Edwards, Chief Judge, Wald and Sentelle, Circuit Judges.  S'Opinion for the Court filed by Chief Judge Edwards.  Sd'Separate statement filed by Circuit Judge Sentelle, concurring in the result.  S' "AEdwards, Chief Judge: This petition for review represents yet another attack by BellSouth  xtCorporation on the constitutionality of the Telecommunications Act of 1996 (the "Act"). Just this past  x^term, BellSouth challenged the validity of  274 of the Act, 47 U.S.C.  274 (Supp. II 1996), which limits  S' xthe ability of Bell operating companies ("BOCs") to provide "electronic publishing." See BellSouth Corp.  Sz' xv. FCC, 144 F.3d 58 (D.C. Cir. 1998) ("BellSouth I"). In this earlier case, BellSouth claimed that  274  xQwas an unconstitutional bill of attainder, because the subjects of its restrictions, the BOCs, are singled out  xby name. In the instant case, BellSouth Corporation, BellSouth Telecommunications, Inc., and BellSouth  xLong Distance, Inc. (collectively "BellSouth") challenge the validity of  271 of the Act, 47 U.S.C.  271  x(Supp. II 1996), which prevents the BOCs from immediately providing in-region long distance telephone service absent satisfaction of certain statutory criteria.  "Once again, BellSouth claims that the challenged provision, here  271, is an unconstitutional bill  xof attainder and, in addition, that it results in a denial of equal protection and a violation of the separation  xkof powers doctrine. BellSouth also seeks to overturn the Federal Communications Commission's ("FCC")  S' xdenial of its application to provide long distance service in South Carolina, see Application of BellSouth  xCorp., et al. Pursuant to Section 271 of the Communications Act of 1934, as amended, To Provide In S' xRegion, InterLATA Services In South Carolina, 13 F.C.C.R. 539 (1997) ("Order"), contesting both the  xFCC's finding that BellSouth is foreclosed from petitioning to provide service under  271(c)(1)(B), and  xthe FCC's findings regarding BellSouth's compliance with certain "competitive checklist" items under   S('271. We found no merit in the claims raised in BellSouth I and this challenge fares no better.  "We hold that  271 does not violate any of the constitutional provisions raised by BellSouth. The  xsection does not violate the bill of attainder clause, because it does not inflict "punishment" on BellSouth.  xInstead, it is a rational and nonpunitive congressional enactment that serves to open telecommunications  xmarkets. Section 271 also does not violate the equal protection clause, because Congress had a rational  S:' xZbasis for singling out the BOCs, i.e., the unique nature of their control over their local exchange areas.  xFinally,  271 does not violate the separation of powers doctrine, because Congress did not substitute its  xjudgment for that of a court; rather it simply altered the prospective effects of a consent decree, which it was surely free to do.  "We also find that the FCC was correct in concluding that BellSouth is foreclosed from petitioning  xto provide service under  271(c)(1)(B), because BellSouth has failed to demonstrate that no "qualifying  xrequests" for access and interconnection have been made. Moreover, given our finding that BellSouth is  xforeclosed from providing service under  271(c)(1)(B), we can find no reason to address the competitive checklist issues.  S#'[I. Backgroundă  S4%' "<As we noted in BellSouth I, the Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat.  x56 (1996), "changed the entire telecommunications landscape." 144 F.3d at 61. Therefore, in order to  x&put the instant case in proper focus, we begin with an overview of the industry landscape prior to the passage of the Act, as well as the Act itself. "(0*0*0*'"Ԍ Q'A.XThe Telecommunications Market and the 1996 Act(#  "yIn 1982, the American Telephone & Telegraph Company ("AT&T") executed a consent decree,  x3settling an antitrust suit brought by the Government in 1974. That decree, as modified by the District  S`' xQCourt, is known as the Modification of Final Judgment ("MFJ"). United States v. American Tel. and Tel.  S:' xCo., 552 F. Supp. 131 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983).  xThe principal element of the MFJ was the requirement that AT&T divest itself of its local exchange  xmonopolies. BellSouth's two local operating companies, Southern Bell Telephone and Tele-graph  xCompany and South Central Bell Telephone Company, were among the twenty-two BOCs spun off as a  x&result of the decree. Each of the twenty-two BOCs were grouped into seven unaffiliated regional Bell  xoperating companies ("RBOCs"). Due to mergers, there are now only five RBOCs, one of which is BellSouth.  S ' "The MFJ prohibited the BOCs from certain lines of business, including the provision of long  S ' xdistance services across different "Local Access and Transit Areas" ("interLATA services"), because of  S ' xthe BOCs' "bottleneck" power over the local exchange facilities. See 552 F. Supp. at 22324. (For the  xremainder of this opinion, we will refer to interLATA services as long distance services.) The MFJ also  xprovided that the BOCs could petition for relief from these prohibitions, including the prohibition against  xQproviding long distance services, if the petitioning BOC could show "that there is no substantial possibility  S'that it could use its monopoly power to impede competition in the market it seeks to enter." Id. at 231.  "Over the life of the MFJ, the District Court granted nearly 300 waivers easing the restrictions of  xtthe decree. A few of these waivers were related to the long distance service restriction, but they were  xIlimited to the provision of services such as paging, time-of-day information, toll-free services, 911  xservices, international services, and cellular services. However, no BOC ever successfully petitioned under the MFJ to provide long distance telephone services.  "EIn 1996, Congress passed the Act, by which it sought to open all telecommunications markets,  xincluding local telephone markets. To this end, many provisions of the Act were made generally  xapplicable to incumbent local exchange carriers. For example,  251 and 252 require all incumbents to  xpermit new carriers to compete for local customers and set forth procedures that incumbents must follow  S4'in order to open their local markets to competition. See 47 U.S.C.  251252 (Supp. II 1996).  "A critical feature of the Act is found in  601(a)(1). This provision eliminated the prospective  x*effects of the MFJ by providing that "[a]ny conduct or activity that was, before the date of enactment of  xtthis Act, subject to any restriction or obligation imposed by the [MFJ] shall, on and after such date, be  xtsubject to the restrictions and obligations imposed by the Communications Act of 1934 as amended by  xthis Act and shall not be subject to the restrictions and the obligations imposed by [the MFJ]." Telecommunications Act of 1996  601(a)(1), 110 Stat. at 143.  "In addition to the Act's generally applicable provisions and the elimination of the future effects  xof the MFJ, Congress enacted  271 through 276, special provisions applicable only to the BOCs listed  S~#' xin  153(4) of the Act. BellSouth is governed by these provisions. As noted in BellSouth I, "[i]n general  xthese provisions simply maintained, and in most cases loosened, various restrictions to which the BOCs  xwere already subject under the MFJ." 144 F.3d at 61. In other words, generally speaking, the BOCs were better off in terms of business market opportunities under the Act than they had been under the MFJ.  "uSection 271, the section at issue in this case, provides that the BOCs may immediately begin  xproviding some categories of long distance services that were previously restricted under the MFJ. These"(0*0*0*'"  S' x^services include "out-of-region" long distance services, i.e., long distance services originating out-side the  x@state(s) in which a BOC is authorized to provide local telephone service, and "incidental" long distance  S' x<services, such as audio and video programming and commercial mobile services. See 47 U.S.C.   x^271(b)(2), (g). Section 271 prevents a BOC from immediately providing in-region long distance services. But this restriction may be overcome by fulfilling the requirements of  271(c) and (d).  "EIn order to provide in-region long distance services, a BOC must first demonstrate that either   x3271(c)(1)(A), known as Track A, or  271(c)(1)(B), known as Track B, has been satisfied. Track A  xrequires a BOC to show that it has entered into an agreement to provide access and interconnec-tion to  x"one or more unaffiliated competing providers of telephone exchange service ... to residential and business  St' x3subscribers." Id.  271(c)(1)(A). Track B, on the other hand, requires a BOC to show that "no such  x7provider has requested the access and interconnection described in subparagraph (A)" three months prior  S& ' xto the BOC's application. Id.  271(c)(1)(B). Such a request is called a "qualifying request." See Order  x  59. In addition, even if a BOC has received a qualifying request, it may still proceed under Track B  xIif the party that made the request either failed to negotiate in good faith or failed to comply with an  S ' xRimplementation schedule in an interconnection agreement. See 47 U.S.C.  271(c)(1)(B); SBC  S ' xCommunications Inc. v. FCC, 138 F.3d 410, 41314 (D.C. Cir. 1998) ("SBC Communications") (providing further explanation of Track A and Track B requirements).  "If a BOC satisfies either Track A or B, it must then show that it offers the items listed in   S' xt271(c)(2)(B), the "competitive checklist." See 47 U.S.C.  271(d)(3)(A). Included on the competitive  xchecklist are things such as nondiscriminatory access to 911 and E911 services, adequate operational  xsupport systems, nondiscriminatory access to unbundled network elements, and contract service  Sv' xZarrangements at a wholesale discount. See id.  271(c)(2)(B). A BOC must also be willing to provide  xits in-region long distance service through a separate subsidiary as required by  272, and must persuade  xtthe FCC that its provision of long distance service "is consistent with public interest, convenience, and  S'necessity." See id.  271(d)(3)(B), (C).  Q'B.XProcedural History(#  "yBellSouth filed an application on September 30, 1997 to provide in-region long distance services  S:' xin South Carolina. See Order  1. It claimed that it had met the requirements of Track B as interpreted  S' xQby the FCC in Application of SBC Communications Inc., Pursuant to Section 271 of the Communications  S' xAct of 1934, as amended, To Provide InRegion, InterLATA Services In Oklahoma, 12 F.C.C.R. 8685  S' x(1997) ("Oklahoma Order"), aff'd, SBC Communications, 138 F.3d 410 (D.C. Cir. 1998). See Order   S' xZ52. It also contended that it had generally offered all fourteen checklist items. See Brief in Support of  xApplication by BellSouth for Provision of InRegion, InterLATA Services in South Carolina at 1757,  ST'reprinted in Joint Appendix 31757.  "The FCC denied BellSouth's application, because it found that qualifying requests had been made  S!' xfor the services in South Carolina. See Order  67. Accordingly, BellSouth was not eligible to proceed  S"' xunder Track B. See id. It also found that BellSouth did not generally offer all fourteen checklist items.  S#' xSee id.  240. BellSouth timely petitioned for review of the FCC's decision in this court on January 13, 1998.  Q&'C.XOther Relevant Developments(#  "Since BellSouth filed its appeal, three cases relevant to this appeal have been decided. On March  S(' x20, 1998, this court decided SBC Communications, denying SBC's petition to review the so-called"(0*0*0*'"  S' xDOklahoma Order. In that case, SBC sought review of the FCC's denial of its request to provide in-region  xxlong distance services in Oklahoma. SBC argued that it had satisfied Track A, because another entity was  xproviding service to 20 customers in the region. SBC argued in the alternative that it had satisfied Track  xB. The FCC denied SBC's request, because it found that SBC had not satisfied either Track A or Track B.  "This court denied SBC's petition to review the FCC's decision, because it found that the other  xentity providing service in-region was doing so free of charge, and it was reasonable for the FCC to  S' xinterpret "competing provider" in Track A to require an "actual commercial alternative to the BOC." SBC  S' xxCommunications, 138 F.3d at 416 (internal quotation marks omitted). This court also found that SBC had  xnot satisfied Track B. Particularly relevant to this case, this court approved the FCC's interpretation that  xg"Track B was foreclosed the moment a provider requested interconnection so long as [the FCC] could  xpredict that the carrier would, after implementing the agreement, provide competitive service to both  S ' xresidential and business customers, at least predominantly over its own facilities." Id. at 417. Because  xSBC had received qualifying requests that satisfied the FCC's interpretation of Track B, it could not seek to provide long distance services under that track.  S`' "On May 15, 1998, this court decided BellSouth I, holding that  274, which limited the ability of  x@the BOCs to provide electronic publishing, was not a bill of attainder, nor did it violate the BOCs' right  S'to free speech under the First Amendment. Although BellSouth I addressed many of the  xtbill of attainder issues raised in this case, there are differences between  274 and  271 that make this case somewhat different from that one.  St' "pOn September 4, 1998, the Fifth Circuit decided SBC Communications, Inc. v. FCC, 154 F.3d 226  SN' x(5th Cir. 1998) ("SBC Communications (5th)"), in which SBC had argued that all of the Special Provisions  xof the Act, 47 U.S.C.  271276, were unconstitutional. Reversing the district court, the Fifth Circuit  x found that the provisions did not constitute a bill of attainder, did not violate the separation of powers  xrequire-ment, and did not violate the equal protection clause. It also found that the electronic publishing restrictions did not violate the BOCs' right to free speech under the First Amendment.  "In the light of these developments, we now review the FCC's denial of BellSouth's application to provide long distance services in South Carolina.  S'dII. Analysisă  "_This appeal presents five issues, three of which concern the constitutionality of  271, and two  xof which concern the FCC's administration of the 1996 Act. We begin with BellSouth's bill of attainder challenge.  Q 'A.XBill of Attainder(#  "Article I, section 9, clause 3 of the Constitution provides that "[n]o Bill of Attainder or ex post  xfacto Law shall be passed." Although the prohibition against bills of attainder was one of the original  xguarantees of civil liberty, and has existed for over two hundred years, the Supreme Court has relied on  S0%' xtit only five times to strike down legislation. See United States v. Brown, 381 U.S. 437 (1965); United  S &' xtStates v. Lovett, 328 U.S. 303 (1946); Pierce v. Carskadon, 83 U.S. (16 Wall.) 234 (1872); Ex parte  S&' xGarland, 71 U.S. (4 Wall.) 333 (1866); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866). Despite  xthe infrequency with which this clause arises in litigation, however, its meaning has nevertheless continued to evolve."(0*0*0*'"Ԍ S' "In our most recent bill of attainder case, BellSouth I, we addressed issues similar to those raised  xin this case. However, that decision dealt with  274 of the Act, and the differences between  274 and  S' 271 distinguish BellSouth I from the instant case.  Sd' "First,  274 sunsets on February 8, 2000. See 47 U.S.C.  274(g)(2). Section 271 has no such  xMsunset date. In addition,  274 allows the BOCs to provide electronic publishing if they do so through  xga separate affiliate. Section 271 allows the BOCs to provide in-region long distance services through a  x^separate affiliate, but only after they have received the approval of the FCC by satisfying the requirements  xof  271(c) and (d). Finally,  274 added restrictions on the BOCs that had been lifted from the MFJ in  x1991. Section 271, however, is merely a revised version of the MFJ restrictions covering the provision of long distance services that were still in effect when the Act was passed.  S& ' "As we explained in BellSouth I, when the Constitution was drafted, "bills of attainder" were acts  S ' xQthat sentenced named persons to death without the benefit of a trial. See BellSouth I, 144 F.3d at 62. By the end of the nineteenth century, however, the Supreme Court had included penalties short of  S ' xdeath among those prohibited by the bill of attainder clause. See id. Today, the prohibition against bills  x_of attainder prevents any "legislative acts, no matter what their form, that apply either to named  xindividuals or to easily ascertainable members of a group in such a way as to inflict punishment on them  S<' xwithout a judicial trial." United States v. Lovett, 328 U.S. 303, 315 (1946). Thus, under the most current  xinterpretations of the bill of attainder clause, a law is prohibited if it (1) applies with specificity, and (2) imposes punishment.  S' "As we made clear in BellSouth I, see 144 F.3d at 6263, both of these elements must be present  Sx' xbefore we will find an unconstitutional bill of attainder. Indeed, the Supreme Court has required both  SR' xspecificity and punishment before it will find that a law constitutes a bill of attainder. In its most recent  S,' xbill of attainder cases, Selective Service System v. Minnesota Public Interest Research Group, 468 U.S.  S' x841, 851 (1984), and Nixon v. Administrator of General Services, 433 U.S. 425, 46972 (1977), the Court  S' xhas clearly stated that satisfaction of the specificity prong alone is not sufficient to find that a particular  S' xlaw implicates the bill of attainder clause, let alone violates it. See Selective Service, 468 U.S. at 851  xk("Even if the specificity element were deemed satisfied by [the statutory provision in question], the statute  x&would not necessarily implicate the Bill of Attainder Clause. The proscription against bills of attainder  SD' xreaches only statutes that inflict punishment on the specified individual or group.") (emphasis added);  S' xtNixon, 433 U.S. at 47172 ("[T]he Act's specificity"the fact that it refers to appellant by name"does not automatically offend the Bill of Attainder Clause."). The Court's jurisprudence on this point is hardly surprising, because  e ]XX` ` [l]egislative measures often grant or withhold benefits or burdens from  e 6precisely identified individuals or groups. A bailout for Chrysler might  e Gbe seen as a burden to Ford, a subsidy to Lockheed as a competitive blow  e 7to Boeing, a private bill for a favored constituent as a severe  e Hdisappointment to a neighbor, a tax break for one company as a  e spunishment for a competitor. Yet the bill of attainder ban has, quite  e properly, never been regarded as an obstacle to all such measures"a  e guarantee that all lawmaking activity will proceed through majestic  e Cgener-alities. Although the Supreme Court once struck down a statute  e exempting American Express by name from a generally applicable  e economic regulation, that decision was itself overruled two decades later,  e when the Court upheld a law permitting two identified vendors to"(0*0*0*'"  e  continue hawking their wares in New Orleans' French Quarter but forbidding all of their competitors to do so.x`  S' XX` `  It is only laws that inflict punishment on legislatively specified  e individuals that the bill of attainder ban con-demns, and the examples  e noted above make plain that not all burdens may be deemed punishments for this purpose even when legislative "specification" is shown.x`  S'Laurence H. Tribe, American Constitutional Law  105, 65051 (2d ed. 1988) (footnotes omitted).  Sr' "In addition, we also note that, as in BellSouth I, both parties have assumed "that the Bill of  SL ' x7Attainder Clause protects corporations as well as individuals." BellSouth I, 144 F.3d at 63. Although we  x make the same assumption here, it is obvious that there are differences between a corporation and an  xindividual under the law. Thus, any analogy between prior cases that have involved individuals and this case, which involves a corporation, must necessarily take into account this difference.  "Turning to the first step in the bill of attainder analysis, there is no doubt that  271 singles out  S^' xthe BOCs by name. See 47 U.S.C.  153(4)(A), 271(a). Thus, because the section applies with specificity, the first prong of the bill of attainder query is satisfied.  "The next question, then, is whether  271 inflicts "punishment" on the BOCs. To answer this  S' xquestion, we must look, as we did in BellSouth I, see 144 F.3d at 64, to the "three necessary inquiries"  S'articulated in Selective Service, which in turn are based on the Court's analysis in Nixon:  e ]XX` ` (1) whether the challenged statute falls within the historical meaning of  e legislative punishment; (2) whether the statute, "viewed in terms of the  e type and severity of burdens imposed, reasonably can be said to further  e jnonpunitive legislative purposes"; and (3) whether the legislative record "evinces a congressional intent to punish."x` X(#  S\' x<Selective Service, 468 U.S. at 852 (quoting Nixon, 433 U.S. at 473, 47576, 478). As we noted in  S6' xQBellSouth I, the second factor invariably appears to be "the most important of the three." 144 F.3d at 65.  xtHowever, in this case, we assign no particular weight to any of the three factors, because we find that none of the three inquiries result in a finding that the challenged legislation constitutes punishment.  S'X1.X` ` The Historical Meaning of Legislative Punishment(#` XX` ` (#`  SH' "Our first inquiry under Selective Service and Nixon is whether  271 falls within the historical  x@meaning of legislative punishment. In the earliest cases construing the provision, the only punishment  S ' x*prohibited by the bill of attainder clause was a sentence of death. See Nixon, 433 U.S. at 473. However,  S!' xthe Court long ago extended the protections of the clause to include "bills of pains and penalties." Id. at  xp474. Bills of pains and penalties "historically consisted of a wide array of punishments: commonly  S#' xincluded were imprisonment, banishment, and the punitive confiscation of property by a sovereign." Id.  x(footnotes omitted). In the Court's most recent jurisprudence, the definition of punishment "has expanded  xto include legislative bars to participation by individuals or groups in specific employments or  S&' xprofessions." Selective Service, 468 U.S. at 852. For example, the Court has held that barring an  xindividual from holding office in a labor union falls within the list of historical punishments forbidden  S'' x^by this clause. See United States v. Brown, 381 U.S. 437 (1965). BellSouth argues that  271 falls under  xthis last category, because it imposes unique restrictions on the BOCs' ability to provide long distance"(0*0*0*'" services in-region.  S' "BellSouth made this same argument with respect to  274 in BellSouth I. See 144 F.3d at 6465.  xMIn that case, although  274 permitted the BOCs to enter into the electronic publishing market through  Sb' xstructurally separated affiliates, we assumed, arguendo, that the BOCs were not permitted to participate  xin that market at all. We then rejected the challenge to the statute, in part, on the ground that "the  S' x Supreme Court in Brown strongly suggested that line-of-business restrictions pose no bill of attainder concerns." 144 F.3d at 65. Likewise, we see no concerns in this case.  S' "8Even leaving aside our analysis in BellSouth I, the Supreme Court has said that "[a] statute that  xleaves open perpetually the possibility of [overcoming a legislative restriction] does not fall within the  SP ' xMhistorical meaning of forbidden legislative punishment." Selective Service, 468 U.S. at 853. BellSouth  S* ' xattempts to nullify this point by citing the Court's earlier opinion in Brown saying that "inescapability"  S ' xis not "an absolute prerequisite to a finding of attainder." 381 U.S. at 457 n.32. The Brown decision  S ' xcited, as an example, the famous post-Civil War case, Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866),  xwhich involved a challenge to a statute requiring attorneys to swear that they had not participated in the  S ' xrebellion against the Union before they could practice in federal court. See Brown, 381 U.S. at 447. The  Sj' xQCourt in Garland struck down the provision as a bill of attainder, because it was found to be a "legislative  xpact[ ] inflicting punishment on a specific group: ... lawyers who had taken part in the rebellion and  S'therefore could not truthfully take the oath." Id.  S' "_This case is a far cry from Garland and other such cases, however. Section 271 only requires  xZthat, in order to prevent the creation of monopolies, the BOCs must open their local telephone markets  S' x to competition. Thus, much like the statute in Selective Service, which simply required individuals to  x<register for the draft before they would be eligible for financial aid,  271 leaves open the very real  xtpossibility that the BOCs may qualify to provide long distance services in-region by simply meeting the  S ' xrequirements of that section. Cf. Selective Service, 468 U.S. at 853. Viewed in this light,  271's  xDrequirements are no different than numerous regula-tory measures aimed at particular industries that have never been held to inflict punishment.  "For example, it would be patently absurd, we think, for an inorganic chemical manufacturing  xcompany to argue that because it must comply with environmental laws specific to that industry, Congress  xhas "punished" it in violation of the bill of attainder clause. Leaving aside the nonpunitive pur-pose of  xsuch laws, it is clear that the environmental laws perpetually leave open the possibility that the company  xmay still manufacture lawful products by simply employing the appropriate pollution control techniques or devices.  "VMoreover, the cases in which employment bars have been struck down are those in which the ban  S, ' xwas used as "a mode of punishment ... against those legislatively branded as disloyal." Nixon, 433 U.S.  S!' xat 474; see Brown, 381 U.S. 437 (1965) (striking down statute that imposed sanctions on one who was  S!' xa member of the Communist Party and an officer or employee of a labor union); Lovett, 328 U.S. 303  xx(1946) (striking down statute that cut off the salary of three named employees based on their membership  S#' xin the Communist Party); Garland, 71 U.S. (4 Wall.) 333 (1866) (striking down statute that required  xattorneys to take oath that they had not aided the Confederacy before being allowed to practice in federal  SD%' xtcourt); Cummings, 71 U.S. (4 Wall.) 277 (1866) (striking down amendments to state constitution that  x*barred people from teaching as well as other professions because they had aided or sympathized with the  xConfederacy). When the Court extended "punishment" to include employment bars, it did so because it  xwas concerned that the government had imposed restrictions that violated the fundamental guarantees of  xDpolitical and religious freedom. Here, there is no indication that run-of-the-mill business regulations, such"(0*0*0*'"  xas  271, implicate these same concerns. Thus, it is difficult to see how  271 can be equated with the employment bar cases relied upon by BellSouth.  "Furthermore, we note that the Supreme Court has approved other line-of-business restrictions  S`' xwithout ever suggesting that the restrictions constituted "punishment." See, e.g., FCC v. National Citizens  S:' xComm. for Broad., 436 U.S. 775 (1978) (upholding FCC rules banning broadcast licensee from owning  S' xnewspaper in same market); Board of Governors of Fed. Reserve Sys. v. Agnew, 329 U.S. 441 (1947)  x(upholding conflict-of-interest statute that prevented employees of securities underwriting firms from  xsimultaneously working for banks that belong to Federal Reserve System). Thus, we find that  271 does not fall within the list of historical punishments recognized by the Court.  SN 'X2.X` ` Furthering Nonpunitive Purposes(#` XX` ` (#`  S ' "As we noted in BellSouth I, even if a statute does not fall within the historical definition of  xpunishment, our inquiry under the bill of attainder clause does not end. Instead, we must ensure that a  xnonpunitive legislative purpose is served by the legislation in order to prevent "Congress from  xgcircumventing the clause by cooking up newfangled ways to punish disfavored individuals or groups."  S`' xBellSouth I, 144 F.3d at 65. Thus, we must now determine whether  271 furthers nonpunitive legislative  S:'purposes. See BellSouth I, 144 F.3d at 65; Siegel v. Lyng, 851 F.2d 412, 418 (D.C. Cir. 1988).  "Before we begin our analysis of  271 under this prong, we note that we must proceed carefully  xwhen characterizing a statute as one that "reasonably can be said to further nonpunitive legislative  S' xpurposes." Nixon, 433 U.S. at 47576. We recognize, for example, that a statute that names an  x&individu-al and sentences him to death is a bill of attainder, without regard to whether Congress could  SN' xarticulate some nonpunitive purpose for the execution, such as the protection of public safety. See Brown,  x8381 U.S. at 458. In other words, we must ensure that " 'the nonpunitive aims of an apparently  S' xprophylactic measure [are] sufficiently clear and convincing,' " BellSouth I, 144 F.3d at 65 (quoting  S'Tribe, supra,  105, at 655), before we find that it does not constitute a bill of attainder.  "RThe Supreme Court has consistently looked to nonpunitive purposes when assessing whether a  xstatute inflicts punishment. As early as 1889, the Court recognized that, even though employment bars  S<' xwere considered punitive in Cummings and Garland, a law that imposed certain requirements on  S' x individuals before they could practice medicine did not constitute a bill of attainder. See Dent v. West  S' xVirginia, 129 U.S. 114 (1889). In distinguishing the earlier cases of Cummings and Garland, the Court stated:  e nXX` ` There is nothing in these decisions which supports the positions for which  e jthe plaintiff in error contends. They only determine, that one who is in  e the enjoyment of a right to preach and teach the Christian religion as a  e Gpriest of a regular church, and one who has been admit-ted to practise the  e profession of the law, cannot be deprived of the right to continue in the  e exercise of their respective professions by the exaction from them of an  e Hoath as to their past conduct, respecting matters which have no  e connection with such professions. Between this doctrine and that for  e which the plaintiff in error contends there is no analogy or resemblance.  e The constitution of Missouri and the act of Congress in question in those  e jcases were designed to deprive parties of their right to continue in their  e professions for past acts, or past expressions of desires and sympathies,  e many of which had no bearing upon their fitness to continue in their"( 0*0*0*'"  e professions. The law of West Virginia was intended to secure such skill  e  and learning in the profession of medicine that the community might trust with confidence those receiv-ing a license under authority of the State.x`  S`'Dent, 129 U.S. at 128.  S' "lThe Court later found in Hawker v. New York, 170 U.S. 189, 197 (1898), that a law prohibiting  x}convicted felons from practicing medicine did not inflict punishment and therefore was not a bill of  xattainder. In so finding, the Court stated that "[t]he State is not seeking to further punish a criminal, but  S' xonly to protect its citizens from physicians of bad character." Id. at 196. The Court also noted that,  xalthough there may be alternate ways of determining good character, it was up to the legislature to make this decision:  e XX` ` It is no answer to say that this test of character is not in all cases  e absolutely certain, and that sometimes it works harshly. Doubtless, one  e who has violated the criminal law may thereafter reform and become in  e fact possessed of a good moral character. But the legislature has power  e fin cases of this kind to make a rule of universal applica-tion, and no  e inquiry is permissible back of the rule to ascertain whether the fact of which the rule is made the absolute test does or does not exist.x`  S'Id. at 197.  "8The Court again embraced the point that burdensome regulation cannot simply be equated with  SH' x*punishment in De Veau v. Braisted, 363 U.S. 144, 160 (1960). In that case, the Court held that a statute  xprohibiting convicted felons from being officers of a waterfront union did not violate the bill of attainder clause:  e XX` ` Clearly,  8 embodies no further implications of appellant's guilt than are  e 6contained in his 1920 judicial convic-tion; and so it manifestly is not a  e bill of attainder.... The question in each case where unpleasant  e wconsequences are brought to bear upon an individual for prior conduct,  e  is whether the legislative aim was to punish that individual for past  e activity, or whether the restriction of the individual comes about as a  e relevant incident to a regulation of a present situation, such as the proper  e qualifications for a profession. No doubt is justified regarding the  e legislative purpose of  8. The proof is overwhelming that New York  e  sought not to punish exfelons, but to devise what was felt to be a  e much-needed scheme of regulation of the waterfront, and for the  e effectuation of that scheme it became important whether individuals had previously been convicted of a felony.x` X(#  Sz#'Id. (citation omitted).  "_This court, too, has had occasion to determine whether certain legislation constituted forbidden  S&' x/punishment or legitimate, nonpunitive regulation. In Siegel v. Lyng, Siegel had been the President,  xDDirector, and majority shareholder of a company that was cited for flagrant and repeated violations of the  S'' x7Perishable Agricultural Commodities Act ("PACA"). See 851 F.2d at 413. Under that Act, someone who  xwas formerly "responsibly connected" with a violator of the Act was barred from employment with any"( 0*0*0*'"  S' xZother licensee under the Act for one year. See id. at 41415. The court found that this prohibition did  S' x&not inflict "punishment" under the bill of attainder clause, see id. at 417, because there were legitimate justifications for the employment bar:  e XX` ` This Court recently echoed Congress' express purpose behind the PACA  e enforcement regime, including the employment restrictions: namely, that  e the Act's "special sanctions against dishonest or unreliable dealing" "help  e Ginstill confidence in parties dealing with each other on short notice, across state lines and at long distances...." x` X(#  St' e  XX` ` [Veg-Mix, Inc. v. United States Dep't of Agric., 832 F.2d 601, 604 (D.C.  e YCir. 1987)]. This legislative and executive resolve to guarantee that  e PACA transactions by firms employing persons "responsibly connected"  e ]to disciplined licensees be conducted with easy-to-monitor, scrupulous  e Ucompliance with the Act is ample justification for the temporary employment bar.x` X(#  S^' xId. at 418 (footnote omitted); see also Zwick v. Freeman, 373 F.2d 110, 11920 (2d Cir. 1967) (finding that the same PACA employment bar was not a bill of attainder).  S' "Likewise, in Dehainaut v. Pena, 32 F.3d 1066, 107172 (7th Cir. 1994), the Seventh Circuit was  x asked to determine the constitutionality of an Office of Personnel Management policy that indefinitely  xbarred former air traffic controllers who had participated in a strike against the federal government from  xreemployment with the Federal Aviation Administration ("FAA"). The court found that the policy did not constitute a bill of attainder and, in so finding, the court specifically stated that:  e XX` ` Even where a fixed identifiable group"such as the fired controllers"is  e singled out and a burden traditionally associated with punishment"such  e as permanent exclusion from an occupation"is imposed, the enactment  e may pass scrutiny under bill of attainder analysis if it seeks to achieve  e Llegitimate and non-punitive ends and was not clearly the product of  e  punitive intent. Put differently, "[t]he question in each case where  e unpleasant consequences are brought to bear upon an individual for prior  e jconduct, is whether the legislative aim was to punish that individual for  e past activity, or whether the restriction of the individual comes about as  e La relevant incident to a regulation of a present situation, such as the proper qualifications for a profession."x` X(# XX` ` ....x` X(#  e XX` ` ... Here, by contrast, we find an adequate nexus between the restriction  e imposed and the legitimate governmental purpose. President Reagan  e Cdetermined that the intermingling of controllers who had been fired for  e Gstriking with those who had replaced them would interfere with the safety and efficiency of the FAA's operations.x` X(#  S&' xNId. (citations omitted); see also 2 Ronald D. Rotunda & John E. Nowak, Treatise on  S'' xConstitutional Law: Substance and Procedure  15.9(c), at 47677 (2d ed. 1992) ("[W]henever  xthe Court is confronted with the claim that legislation constitutes a bill of attainder, it must determine"( 0*0*0*'"  xgwhether the designation of persons based on past conduct simply names individuals for punishment or  S' xwhether the designation promotes a nonpunitive goal based on reasonable criteria over which the  S' xDindividual has some control."); Tribe, supra,  105, at 655 ("Even measures historically associated with  x7punishment"such as permanent exclusion from an occupation"have been otherwise regarded when the nonpunitive aims of an apparently prophylactic measure have seemed sufficiently clear and convincing.").  ""Thus, even if the restrictions of  271 were equivalent to an employment bar"an assumption that  xwe do not endorse"the section would not offend the bill of attainder clause if it furthers nonpunitive  xxpurposes. The question, then, is whether there is convincing evidence of legitimate, nonpunitive purposes furthered by  271 that prevent us from striking it down. We believe there is.  "First,  271 was passed as part of the 1996 Act, an act that Congress hoped "would 'provide for  xa pro-competitive, deregulatory national policy framework ... by opening all telecommunications markets  S ' xto competition.' " SBC Communications, 138 F.3d at 413 (quoting H.R. Conf. Rep. No. 104458, at 1  S ' x(1996)). As we explained in SBC Communications, changing the entire telecommunications landscape was  xVa monumental and difficult task for Congress. Deregulating the long distance services market was particularly difficult:  e XX` ` The question of how best to achieve that goal ... was the subject of great  e debate. Some thought that the local and long-distance markets should be  e fopen to all competitors immediately. Others believed that the BOCs  e should have to wait until actual competition was introduced in their local  e :markets before providing interLATA service, since it was claimed that the  e Clong-distance market is already competitive. As might be expected for  e an issue of this economic significance, an extended lobbying struggle  e ensued. The end product was a compromise between the competing factions.x` X(#  XX` `  States and localities were no longer to sanction local monopolies;  e they are now barred from "prohibiting the ability of any entity to provide  e w... intrastate telecommunications service." 47 U.S.C.A.  253(a) (West  e Supp.1997). The BOCs are obliged to provide any requesting carrier  e with nondiscriminatory interconnection to their networks and  e jnondiscriminatory access to unbundled network elements at reasonable  e Crates, terms, and conditions; they must also offer telecommunications services at wholesale rates for resale to end users. 47 U.S.C.A.  251(c).x` X(#  Q@'Id.  "NSecond, it is clear that requiring the BOCs to comply with  271 is not punitive, but, rather, legitimately based on the infrastructure they control. As the legislative history notes,  e fXX` ` The seven BOCs provide over 80% of local telephone service in the  e United States. Several hundred other carriers provide the balance of local  e service. While some competition has developed in the local business  e service and exchange access markets, local residential service remains a monopoly service.x` X(#  S(' xH.R. Rep. No. 104204, pt.1, at 49 (1995). And, as we found in BellSouth I, "[b]ecause the BOCs'"( 0*0*0*'"  xfacilities are generally less dispersed than [those of other competitors], they can exercise bottleneck control  xover both ends of a telephone call in a higher fraction of cases than can [other competitors]." 144 F.3d at 67.  "Furthermore, prior to the passage of the Act, the BOCs were subject to the MFJ because of their  x peculiar characteristics and assets, and it was perfectly proper for the legislature to look at the MFJ's  x3findings as evidence of the BOCs' dominance in the market. Thus, it was proper for the legislature to  xDconsider the prior judicial findings embodied in the MFJ, not because Congress seeks to punish the BOCs  xbased on that decree, but, rather, because it hopes "to devise what [i]s felt to be a much-needed scheme  S' xof regulation" in the long distance services market. See De Veau, 363 U.S. at 160. And, "for the  Sr' xeffectuation of that scheme," see id., it was important to treat the BOCs differently, because, as the District  xCourt found in approving the MFJ, preventing the BOCs from providing long distance services was "clearly necessary to preserve free competition in the interexchange market." 552 F. Supp. at 188.  S ' "8In addition, as we noted in BellSouth I, Congress may read the evidence before it in a different  xway than might this court or any other, so long as it remains clear that Congress was pursuing a legitimate  S ' xnonpunitive purpose. See 144 F.3d at 66. In other words, it does not matter that Congress arguably could  x7have enacted different legislation in an effort to open the long distance markets to competition. The main  xMpoint here is that it cannot be legitimately "suggested that the risks of anticompetitive conduct were so  xfeeble that no one could reasonably assert them except as a smokescreen for some invidious purpose  S' x(much less for the specific invidious purpose of 'punishing' the BOCs)." Id. And just as the Court in  S' x7Hawker acknowledged that ex-felon status was "not in all cases [an] absolutely certain" test of character,  x"and that sometimes it works harshly," 170 U.S. at 197, such a determination does not render legislation unconstitutional under the bill of attainder clause.  "VIn sum, we find that  271 furthers legitimate, nonpunitive purposes: Congress required the BOCs  xQto open their local markets to competition before allowing them to enter the long distance services market  xin-region, because, due to the unique infrastructure controlled by the BOCs, they could exercise monopoly  xtpower. Moreover, there is adequate support for this reasoning, particularly in light of the MFJ. Thus,  S' xas we noted in BellSouth I, "the differential treatment of the BOCs and non-BOCs, is neither suggestive  xof punitive purpose nor particularly suspicious." 144 F.3d at 67. Accordingly, we find that  271 furthers nonpunitive purposes.  S'X3.X` ` Legislative Intent To Punish(#` XX` ` (#`  "Finally, we briefly address the final prong of the punishment test: whether the legislative record  Sn' xindicates a legislative intent to punish. As we noted in BellSouth I, BellSouth must show " 'unmistakable  SH' xlevidence of punitive intent.' " 144 F.3d at 67 (quoting Selective Service, 468 U.S. at 856 n.15).  S" ' xQ"[S]everal isolated statements" are not sufficient to evince punitive intent. See Selective Service, 468 U.S. at 856 n.15.  S"' ""BellSouth again cites here, as it did in BellSouth I, the remarks of members of Congress that refer  S#' x to the history of the BOCs and the breakup of AT&T. See Brief for Appellants at 2829; Reply Brief  S`$' x}for Appellants at 1314 n.7. But, as we said in BellSouth I, the "few scattered remarks referring to  xanticompetitive abuses allegedly committed by the BOCs in the past" do not provide the kind of "  x'smoking gun' evidence of congressional vindictiveness." 144 F.3d at 67. Furthermore, as we explained  xtabove, Congress was justified in considering the MFJ when drafting the 1996 Act. Thus, we find that  S'' x^BellSouth has failed to show the "unmistakable evidence of punitive intent" that is required under Selective  S('Service."( 0*0*0*'"Ԍ "ԙIn sum, we find that  271's restrictions do not fall within the historical meaning of legislative  xpunishment, that they further nonpunitive purposes, and that there is no unmistakable evidence of  x^legislative intent to punish. Thus, we find that  271 does not constitute punishment according to the  %RS test  S'articulated in Selective Service.  S:'X4.X` ` The Beneficial Effects of  271(#` XX` ` (#`  "The result that we are constrained to reach in this case makes sense in light of the history of the  S' xBOCs in the telecommunications industry. As the FCC points out,  271 actually "benefits the BOCs by  S' xgrelieving them of certain burdens." Brief for Appellee at 19; see Brief of Intervenors in Support of the  xFCC at 17 ("Section 271 cannot qualify as punishment unless it deprives BOCs of a right 'previously  SN ' xenjoyed.' ") (quoting United States v. Brown, 381 U.S. 437, 448 (1965)). Indeed, in BellSouth I, we  xZcommented that "BellSouth's claim of punitive purpose is somewhat undermined by  274's placement  S ' xin an Act that as a whole relieves the BOCs of several of the burdens imposed by the MFJ, particularly  xby prescribing in  271 a method whereby the BOCs can achieve a long-sought-after presence in the long-distance market." 144 F.3d at 66.  "BellSouth, however, argues that we should not compare the status of the BOCs under the MFJ in  xdetermining whether  271 imposes punishment. Instead, BellSouth contends that "whether section 271  xpunishes the BOCs must be tested by comparing how it treats the BOCs as compared to other [local  xexchange carriers]"not by comparing the MFJ to the 1996 Act." Brief for Appellants at 2021. In  xresponse, the FCC and the intervenors are quick to point out that counsel for BellSouth readily embraced a comparison between the restrictions of the 1996 Act and the MFJ when he testified before Congress:  e XX` ` [I]nsofar as MFJ restrictions are left in place pursuant to the decision of  S"' e the D.C. Circuit [in United States v. Western Electric Co., 900 F.2d 283  e a(D.C. Cir. 1990)], Congress has authority to lift such restrictions in whole  e or in part, replacing them with equivalent or less restrictive regulatory  e alternatives that single out the parties to the AT&T litigation, as an  e wexercise of its authority under the Necessary and Proper Clause, Art. I,  e section 8, cl. 18, to "carr(y) into Execution" the powers of the Article III  e Pjudiciary. Because such parties have already been sin-gled out through  e enforcement activity of the executive branch, in litigation supervised by  e othe judicial branch, Congress may likewise address its legislative  e jsubstitute for the MFJ to those parties in particular, again provided that  e it avoids imposing more burdensome restrictions, or restrictions that violate the first amendment.x` X(#  Q ' xxTelecommunications Policy Act (Pt. 1): Hearings Before the Subcomm. on Communications and Finance  S ' xof the House Comm. on Energy and Commerce, 101st Cong. 416 (1990) (testimony of Professor Laurence  xH. Tribe, Tyler Professor of Constitutional Law, Harvard Law School). Such a comparison appears  S"' x reasonable, given that a common definition for "punish" is "to inflict injury or loss upon." Webster's  S~#' xMThird International Dictionary 1843 (1993). And it is hard to imagine how  271 inflicts injury  xon BellSouth when it was already prevented under the MFJ from entering the in-region long distance service market.  "Although we acknowledge that it may at times be difficult to compare a party's status before and  xafter the enactment of regulatory legislation to determine whether the legislation inflicts punishment, we  xDnonetheless believe that such a comparison is relevant to our analysis. In this case, it is clear that  271's"(0*0*0*'"  xrestrictions are not more burdensome than those of the MFJ. BellSouth argues that under the MFJ, a BOC  xDcould petition for the removal of a line-of-business restriction if it could show that "there is no substantial  xgpossibility that [it] could use its monopoly power to impede competition in the relevant market." MFJ,  xc552 F. Supp. at 195. It then points out that, if the parties to the MFJ consented, a line-of-business  S`' xrestriction could be removed if the BOC could show that the change was in the public interest. See United  S:' xkStates v. Western Elec. Co., 900 F.2d 283, 306 (D.C. Cir. 1990). But now, argues BellSouth, the process  x&is more burdensome, because  271 subjects it to "an indefinite procedure of FCC and Department of Justice review." Brief for Appellants at 21. Our view of the situation is quite different.  "uSection 271, at worst, provides the BOCs with the possibility of immediate entrance into the  xMin-region long distance services market, by following a clearer path than that provided under the MFJ.  xAs the Fifth Circuit pointed out, "the Special Provisions gave the BOCs a clear delineation of what they  x@needed to do to achieve a lifting of all the old MFJ restrictions in the future"certainly a step up, from  xgthe BOCs' perspective, from being under [the District Court's] perpetual supervision. It is perhaps for  xtthis reason that the BOCs have apparently consistently represented, outside of litigation, that they were  S ' x3pleased with the Act." SBC Communications (5th), 154 F.3d at 244; see, e.g., BellSouth Reaction to  S ' xPresident Clinton's Signing of the Telecommunications Act of 1996, PR Newswire, Feb. 8, 1996, available  S`' xin WESTLAW, PRWIREPLUS database (reporting that BellSouth's Chairman applauded the Act and  x@noted "bipartisan and industry wide support" for it). In short, as a qualitative matter, the BOCs are no  xworse off under  271 than they were under the MFJ; and there are many who think their position has  xvastly improved. In any event, we are confident that  271 does not constitute "punishment," either as a matter of constitutional law under the bill of attainder clause or as a matter of common sense.  Qr'B.XEqual Protection(#  "BellSouth also argues that the application of  271 denies it equal protection under the Fifth Amendment. We disagree.  S' "As the Court stated in FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993), "a statutory  xclassification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must  xxbe upheld against equal protection challenge if there is any reasonably conceivable state of facts that could  S4' xprovide a rational basis for the classification." As we found in BellSouth I, "the differential treatment of  xthe BOCs and non-BOCs is neither suggestive of punitive purpose nor particularly suspicious." 144 F.3d  xat 67. Nor does  271 infringe a fundamental constitutional right. Accordingly, we need only subject  271 to rational basis scrutiny.  Sn' "hAs explained above, Congress clearly had a rational basis for singling out the BOCs, i.e., the  SH' xIunique nature of their control over their local exchange areas. See supra Part II.A.2. Thus, it was  xundoubtedly rational for Congress to restrict the BOCs' entry into the long distance services market. By  S ' xno stretch of the imagination can it be found that  271 violates equal protection. See Beach  S!' xCommunications, 508 U.S. at 31516 ("[A] legislative choice is not subject to courtroom factfinding and  xmay be based on rational specula-tion unsupported by evidence or empirical data.... Defining the class of  xpersons subject to a regulatory requirement"much like classifying governmental beneficiaries"'inevitably  xtrequires that some persons who have an almost equally strong claim to favored treatment be placed on  xZdifferent sides of the line, and the fact [that] the line might have been drawn differently at some points  S&' xgis a matter for legislative, rather than judicial, consideration.' ") (quoting United States R.R. Retirement  S&' xBd. v. Fritz, 449 U.S. 166, 179 (1980)). And, as we noted in BellSouth I, the bill of attainder inquiry is  x"more exacting than a rational basis test." 144 F.3d at 67. Therefore, in light of our decision that  271  S(' xdoes not violate the bill of attainder clause, we must conclude a fortiori that it  %R does not violate the equal"(0*0*0*'" protection clause.  Q'C.XSeparation of Powers Challenge(#  "BellSouth next argues that  271 is contrary to the principle of separation of powers. It concedes  xxthat "Congress may modify generally applicable rules and thereby supersede a prior consent decree arising  x}from those underlying rules." Reply Brief for Appellants at 4. However, the problem, according to  xxBellSouth, is that  271 "pinpoint[s]" the BOCs, and replaces the restrictions imposed on them by the MFJ  S' xwith what Congress "deem[ed] ... a more appropriate sanction." Id. BellSouth contends that, in so doing,  xtCongress interfered with the prerogative of the judicial branch. Although we agree with BellSouth that  Sr' x7Congress may not reopen "the last word of the judicial department," Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995), we do not agree that  271 implicates this concern.  S ' "In Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855), the Court  xhad entered a final judgment in 1851, ordering the private owner of a bridge across the Ohio River to  S ' x3either remove or raise a bridge because it obstructed traffic along the river. See id. at 429. After that  xdecision, Congress passed legislation that made the bridge in question a post-road, which meant that the  S`' x&bridge could remain in place with no interference from navigation along the river. See id. The bridge  S:' xgwas then destroyed by a storm. See id. at 422. When the owner began to rebuild the bridge, the state  xof Pennsylvania filed suit to prevent its reconstruction based on the Supreme Court's original finding that  S' xthe bridge was a nuisance. See id. Faced with this dilemma, the Court held that the legislation was not  S' xunconstitutional, because the injunctive remedy awarded in 1851 was "a continuing decree," see id. at 431,  xand, thus, could be modified by Congress. As a result, the statute passed by Congress prevented the Court  Sx' xfrom enjoining the construction of the bridge. See id. at 43132. Therefore, as the Fifth Circuit pointed  SR' xout, "under [Wheeling], it has long been clear that Congress may change the law underlying ongoing  S,' xequitable relief, even if, as in Wheeling itself, the change is specifically targeted at and limited in  x/applicability to a particular injunction, and even if the change results in the necessary lifting of that  S'injunction." SBC Communications (5th), 154 F.3d at 245.  S' "}The Supreme Court recently revisited the separation of powers doctrine in Plaut. There, Congress  xhad passed a statute that would have allowed cases alleging claims under the Securities Exchange Act   SB' xD10(b) that had been dismissed as time-barred to be reinstated. See Plaut, 514 U.S. at 21415. The Court  xheld that the statute violated separation of powers principles, because it reopened final judgments of the  S' xjudiciary. See id. at 240. The Court was careful, however, not to overrule Wheeling, "implicitly  x^[drawing] a ... distinction between two kinds of final judgments for separation of powers purposes"final  xjudgments without prospective effects, which could not be constitutionally revised through legislation, and  S~' xfinal judgments with prospective effects, whose effects could constitutionally be so revised." Benjamin  SX' xv. Jacobson, 124 F.3d 162, 171 (2d Cir. 1997); see Plaut, 514 U.S. at 232 (stating that "nothing in our  S2 'holding today calls [Wheeling] into question").  "The 1996 Act did not reopen a final judgment, but rather eliminated the prospective effects of the  xMFJ, and provided new restrictions to govern the future acts of the BOCs in its place, such as those found  xin  271. Our analysis is not altered by the fact that Congress targeted the BOCs for different treatment,  Sl$'because the Court upheld precisely this type of specificity in Wheeling.  "Moreover, BellSouth's argument appears to be the same argument that SBC made to the Fifth  S&' xCircuit regarding separation of powers, i.e., "a not-too-well-defined argument that all of the problematic  xQaspects of the Special Provisions"including particularly their specificity, their interference with the MFJ,  xand the near-punitive nature of the liability they impose"when added together somehow amount to a"(0*0*0*'"  S' xDseparation-of-powers violation that is greater than the sum of its parts." SBC Communications (5th), 154  S' xF.3d at 246. But in Plaut, the Court made clear that "[i]t makes no difference whatever to [the]  xseparation-of-powers violation ... that it is not accompanied by an 'almost' violation of the Bill of  S' xAttain-der Clause." 514 U.S. at 239; see SBC Communications (5th), 154 F.3d at 246. Thus, although  x@BellSouth is troubled by the particularity with which  271 operates, and the fact that it believes  271  xis at least near-punitive, this combination does not change the result of our analysis of the separation of powers claim. We agree with the Fifth Circuit that  271 does not violate separation of powers principles.  Q'D.XThe Proceedings Under  271(c)(1)(B)(#  "BellSouth also argues that the FCC erred in finding that it was foreclosed from proceeding under  x 271(c)(1)(B), Track B, which would allow it to provide long distance services in-region. Under Track  xB, as discussed above, a BOC may apply to provide long distance services if it can show that "no potential  xfacilities-based provider of the type of telephone exchange service described in  271(c)(1)(A) requested  S 'access and interconnection to BellSouth's network." Order  65.  "BellSouth argues that in order to foreclose Track B, a "competing provider must be taking  S`' x reasonable steps toward implementation" of a request. Reply Brief for Appellants at 15; see Brief for  xgAppellants at 33. This interpretation of Track B, contends BellSouth, is based on the statute as well as  S' xthe Oklahoma Order. See Brief for Appellants at 33; Reply Brief for Appellants at 1518. The FCC  xcounters that there is no "reasonable steps" requirement under Track B; instead, the "reasonable steps"  S' xlanguage in the Oklahoma Order was only used in a discussion of what might be considered when making  S' xa decision regarding subsequent, not initial, applications. See Brief for Appellee at 3132; Oklahoma  Sx'Order  58.  S*' "In SBC Communications, this court had the opportunity to determine what type of request  S' xgforeclosed Track B. See SBC Communications, 138 F.3d at 41721. In that case, the FCC found that  xg"Track B was foreclosed the moment a provider requested interconnection so long as [the FCC] could  xpredict that the carrier would, after implementing the agreement, provide competitive service to both  S' x*residential and business customers, at least predominantly over its own facilities." Id. at 417. This court  Sh' xenforced the agency's interpretation of the Track B statute because "under [Chevron, U.S.A., Inc. v.  SB' x+Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)] we must give deference to the  x@Commission's interpretation if it is a permissible reading," and the court had "no doubt that [the FCC's  S' x/interpretation] passes that test; indeed it may ... be the only reasonable interpretation." Id. at 421.  xtNotably, there is no mention of reasonable steps in this definition. Accordingly, the FCC need not find  x^that a requesting provider has taken reasonable steps before Track B is foreclosed to a BOC; it must only  xbe able to predict that a provider who requests interconnection would be able to provide competitive  SV' xservices "to both residential and business customers, at least predominantly over its own facilities." Id. at 417.  "BellSouth objects to what it sees as the "gaming" aspect of Track B. It argues that if there is no  xZreasonable-steps requirement, "the FCC all but ensures that some carriers (particularly incumbent long  xQdistance carriers) will block Track B for months or years." Reply Brief for Appellants at 17. As the FCC  Sh$' xkexplained in its Order, however, the statute prevents this type of gaming: if the state commission certifies  xthat a requesting provider has failed to negotiate in good faith or has failed to comply with the  S&' x@implementation schedule in an agreement, a qualifying request by that provider would be ignored. See  S&' x Order  64. Thus, if either of these two situations occurred, Track B would be available to the BOC. Accordingly, there is no need for a "reasonable steps" requirement. "(0*0*0*'"Ԍ "BellSouth counters that this answer is illusory, because the agreements often lack implementation  S' xschedules. See Brief for Appellants at 3637. But, as the FCC points out, "BOCs are not precluded from  x@insisting that implementation schedules be included in interconnection agreements." Brief for Appellee  S' xDat 3435; see SBC Communications, 138 F.3d at 420. Moreover, "[i]n any event, this argument does not  Sd' xDreally go to congressional purpose ... but rather to the adequacy of the remedy Congress provided." SBC  S>'Communications, 138 F.3d at 420.  "BellSouth never offered any evidence that it did not receive any qualifying requests; instead, it  xrested solely on evidence that no carrier had taken the reasonable steps it thought were necessary to  S' xconstitute a qualifying request. See Order  6567 (noting that BellSouth received requests from  xtwen-ty-six carriers with signed interconnection agreements, only three of which BellSouth discussed in  xits application). Thus, we deny BellSouth's petition to review the FCC's decision, because it is clear that BellSouth failed to demonstrate that it is eligible to proceed under Track B.  Q 'E.XSatisfaction of Certain Competitive Checklist Items Under  271(c)(2)(B)(#  "BellSouth also argues that the FCC erred in its application of the competitive checklist of   x271(c)(2)(B). This argument concerns whether the FCC attempted to "dictate how ... interconnection,  xunbundled access, [or] resale ... should be priced" in violation of the Eighth Circuit's mandamus order in  S' xZIowa Utilities Board v. FCC, 135 F.3d 535 (8th Cir. 1998), petition for cert. filed, 66 U.S.L.W. 3623  xD(U.S. Mar. 13, 1998) (No. 971519). Reply Brief for Appellants at 18 (internal quotation marks omitted).  S' xThe mandamus order in the second Iowa Utilities case is based on the Eighth Circuit's decision in Iowa  S' xUtilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997), which the Supreme Court has agreed to review.  Sx'See 118 S. Ct. 879 (1998).  "Because the FCC relied on BellSouth's failure to comply with the competitive checklist items only  S' xQas an alternative ground for its denial of BellSouth's application, see Order  76, we see no reason to offer any opinion on the FCC's  %R findings with respect to this issue.  S'sXIII. Conclusionă For the reasons set forth above, we deny BellSouth's  %R petition for review of the FCC's decision.  S'`(#sSo ordered.ă "0*0*0*p"  S' "Sentelle, #&G*f9 x&X#Circuit Judge,#&G\  Pu&P# concurring in the result: As the majority opinion exhaustively sets  xforth, in the present appeal BellSouth mounts the same sort of constitutional attack on 47 U.S.C.  271  S' xthat it previously pursued unsuccessfully against 47 U.S.C.  274 in BellSouth Corp. v. FCC, 144 F.3d  S' x58 (D.C. Cir. 1998) ("BellSouth I"). In the prior case BellSouth and the other Bell operating companies  xZ("BOCs") argued that Congress had punished their prior anti-competitive conduct by singling them out  xby name for legislative debarment from participation in the lucrative line of business constituting  xelectronic publishing. In the present case they assert the unconstitutionality of  271 on the same basis,  xMas it singles them out by name for disqualification from immediate entry into the business of providing  xin-region long distance telephone service until they comply with burdens not imposed on any other entity  S' x7no matter how similarly situated. I found their arguments persuasive in BellSouth I. See 144 F.3d at 7174 (Sentelle, J., dissenting). I find them equally persuasive today.  "As the majority today sets forth, Article I, section 9, clause 3 of the Constitution prohibits  S ' xCongress from passing any "Bill of Attainder or ex post facto Law." See Maj. op. at 9. As the majority  x further recognizes, that clause prohibits any statute that "(1) applies with specificity, and (2) imposes  xVpunishment." Maj. op. at 10. Specificity is not at issue here. Section 271, like  274, specifies its  xZapplications solely to the BOCs by their names. It does not apply to any other of the "over 1,300 local  Sb' xexchange carriers," BellSouth I, 144 F.3d at 71, no matter how large or market dominant they are or  xbecome. Thus, under the two-part test correctly set forth by the majority, if  271 imposes punishment it is an unconstitutional bill of attainder. It does, and it is.  "+The Supreme Court has previously "announced a three-part test to determine whether a statute imposes 'punishment' for purposes of the Bill of Attainder Clause":  e ]XX` ` (1) whether the challenged statute falls within the historical meaning of  e Clegislative punishment; (2) whether the statute, viewed in terms of the  e type and severity of burdens imposed, reasonably can be said to further  e ]nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish.x` X(#  S\' xId. at 72 (quoting Selective Serv. Sys. v. Minnesota Public Interest Research Group, 468 U.S. 841, 852 (1984)). The limitations on the BOCs constitute punishment under that three-part test.  "First, this line of business limitation embodied in  271 is a restriction of a sort falling within the  xZhistoric meaning of legislative punishment. "[L]egislative bars to participation by individuals or groups  x^in specific employments or professions" unquestionably fall within the category of punishments forbidden  Sn' xby the Bill of Attainder Clause. Selective Serv. Sys., 468 U.S. at 852; United States v. Brown, 381 U.S.  SH' x437 (1965) (invalidating statute barring communist party members from labor union offices); United  S" ' xStates v. Lovett, 328 U.S. 303 (1946) (striking down law cutting off salaries to three named government  S ' xemployees); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867); Ex Parte Garland, 71 (4 Wall.) 333  x(1867) (barring former confederate rebels from entry into professions). I find unpersuasive the majority's  x*attempt to distinguish these prior cases on the basis that the "line of business" restrictions before us leave  xopen the possibility that they may one day be overcome. I find nothing in the history of bill of attainder  xDjurisprudence that suggests that the fact that debarment from business will or may someday end prevents the temporary or potentially temporary bar from constituting punishment.  "=I find even less persuasive the majority's paralleling the line of business restrictions with  xregulatory restrictions applicable to entire industries. While it may be true as the majority argues that  x7environmental laws specific to an industry do not constitute punishment, I do not see how this lessens or"(0*0*0*'"  xeven affects the punitive nature of a restriction applicable not to a specific industry but rather to specific  xnamed individuals or corporations within an industry inapplicable to others in the same industry, whether  S' xor not similarly situated. Both punitive effect and specificity are necessary to render a legislative  xxenactment an unconstitutional bill of attainder. Supreme Court precedent upholding regulatory restrictions  Sb' x(whether punitive or not) where specificity is lacking is inapposite. See, e.g., FCC v. National Citizens  S<' xComm. for Broad., 436 U.S. 775 (1978); Board of Governors of Fed. Reserve Sys. v. Agnew, 329 U.S.  x*441 (1947). In short, in my view, the first prong of the three-part test of bill of attainder status is plainly met.  "ESecond, as to whether the statute furthers nonpunitive legislative purposes, the laudable goal of  xopening the telecommunications industry to competition by deregulating the long distance market is not  xserved by forbidding specific persons, whether natural or corporate, from competing on the same terms  xas others. If the BOCs possess characteristics that require that they be more stringently regulated than  xQother entities, then Congress could further its nonpunitive goals by imposing limitations on local exchange  xcarriers of a certain size or market dominance. I do not see how this provision specifying the individual  xBell operating companies furthers the nonpunitive goals of the new statutory regime; rather, it furthers  x3the punitive goal of penalizing their past anti-competitive conduct. Pursuit of this punitive goal strikes  xMat the heart of the prohibition against "Bills of Attainder" and "ex post facto Laws" which constitute an  xtessential part of the Constitution's structural separation of powers among the branches of government:  xthe redress of past conduct is the province of the Judiciary, not of the Legislature. As we recognized in  S' xBellSouth I, Article I, section 9, clause 3 of the Constitution was designed to prevent punishment "without  S'the benefit of a judicial trial." BellSouth I, 144 F.3d at 62.  Sr' "As to the third element of the Selective Service System test, that is, whether the legislative record  SL' xtevinces a congressional intent to punish, as I stated in my dissent in BellSouth I, while I think this "the  S&' xleast important" of the three factors, id. at 73, I think it amply met. The timing of the enactment along  x&with its effect in undoing the termination of the prior judicial redress of the BOCs' past conduct really  xEleaves no doubt as to Congress's motive. Congress clearly had available to it "less burdensome  xalternatives" under which it could have addressed its "legitimate nonpunitive objectives" while refraining  S' xfrom singling out the BOCs for punitive legislative treatment. See Nixon v. Administrator of General  Sb'Services, 433 U.S. 425, 482 (1977).  "For these reasons, were we writing on a clean slate I would vote to hold 47 U.S.C.  271  xunconstitutional as a violation of the Bill of Attainder Clause. But I recognize that we do not write upon  S' x@a clean slate. BellSouth I announces the law of the Circuit. The prior opinions of other panels of this  S' x<court bind us. Melcher v. Federal Open Market Comm., 836 F.2d 561, 565 n.4 (D.C. Cir. 1987);  Sx' xNational Treasury Employees Union v. United States, 990 F.2d 1271, 1286 n.7 (D.C. Cir. 1993) (Sentelle,  xJ., dissenting) ("The law of this Circuit, whether in error or not, is binding absent correction by a higher  S* ' xcourt."), aff'd in part and rev'd in part, 513 U.S. 454 (1995). While the BOCs have labored to find  S!' xdistinctions between  274 which we struck down in BellSouth I and  271 which is before us today, they  xhave produced none of constitutional significance. I therefore concur in my colleagues' decision that we must uphold  271 as we upheld  274.  "_I do not find that the BOCs' other arguments concerning the equal protection component of the  xFifth Amendment or the statute's inconsistency with the constitutional separation of powers change the  xQresult. The equal protection argument is simply the bill of attainder argument dressed in different clothes.  x*The separation of powers argument is to me a powerful one, but one which cannot carry the day. While  xI would agree that by undoing the judicial decision on this same subject matter,  271"and for that matter  S(' x& 274"falls afoul of the Supreme Court's reasoning in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211"(0*0*0*'"  S' x(1995), I do not think we could enter such a holding consistent with our precedent in BellSouth I. The  x*characteristics which make these statutory sections inconsistent with constitutional separation of powers  xare the same ones which in my view make them inconsistent with the protections of Article I, section 9,  S' xclause 3. See Brown, 381 U.S. at 442 ("The best available evidence, the writings of the architects of our  xconstitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical  x(and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of  xpowers, a general safeguard against legislative exercise of the judicial function, or more simply"trial by  xMlegislature."). This Circuit having decided those issues adversely to the BOCs under the more specific  x&rationale cannot consistently decide in their favor under the more general. Therefore, again, I join the  xmajority's result, but only for reasons of stare decisis and binding precedent, not because I believe it correct.