June 16, 2000
| Re: | GTE Corporation and Bell Atlantic Corporation, Applications for Transfer of Control of Domestic and International Section 214 and 310 Authorizations and Application to Transfer Control of a Submarine Cable Landing License, Memorandum Opinion and Order, CC Docket No. 98-184. |
I concur in the Commission's decision to approve Bell Atlantic's and GTE's application to transfer control of certain lines and licenses in connection with the parties' planned merger transaction. I agree that the parties have demonstrated that they will be in compliance with section 271(a) of the Telecommunications Act of 1996 when this transaction is complete and that Genuity will not be an "affiliate" of the merged company within the meaning of 47 U.S.C. § 153(1).
As I have said before, however, I do not endorse the quasi-antitrust analysis that this Commission has used to determine whether a license transfer is in the "public interest" under sections 214 and 310 and I do not join in those portions of this Order that follow this approach. I have also explained that I do not believe the Commission has authority over undersea cable landing licenses, one of the licenses at issue here. See Dissenting Statement of Commissioner Furchtgott-Roth, Review of Commission Consideration of Applications under the Cable Landing License Act, IN Docket No. 00-106. (rel. June 8, 2000).
Nor do I support those conditions that are essentially carbon copies of the conditions that the Commission imposed on the SBC/Ameritech transaction. I summarize below my objections to these conditions. I refer to the reader to my statement in the SBC/Ameritech Order for a more complete discussion of my concerns. See Statement of Commissioner Furchtgott-Roth, Concurring in Part & Dissenting in Part, Applications of Ameritech Corp., Transferor, and SBC Communications, Inc., Transferee, For Consent to Transfer Control of Corporations Holding Commission Licenses and Lines Pursuant to Sections 214 and 310(d) of the Communications Act and Parts 5, 22, 24, 25, 63, 90, 95, and 101 of the Commission's Rules, CC Docket 98-141 (rel. Oct. 6, 1999).
First, and most importantly, the Commission's "public interest" interest test is not grounded in the law. The Commission applies very different levels of review to license transfer applications that arise under identical statutory provisions, and it has never articulated a standard for distinguishing among those applications that receive extensive analysis and those that do not. Nor does the Commission have established procedures for processing license transfer applications. And, once it decides to subject a license transfer application to extensive review, it applies a framework that is so malleable the Commission can justify any conclusion it wishes. As a result, applicants lack advance notice regarding the extent to which this Commission will scrutinize their applications, the process by which their applications will be handled, and the substantive standard that will be applied should the Commission closely scrutinize their applications.
Not only is the Commission's free-wheeling approach to its review of license transfer applications arbitrary and inconsistent with fair notice requirements, but also it may well be at odds with the constitutional nondelegation doctrine. The Court of Appeals for the District of Columbia Circuit has held that where an agency fails to articulate "intelligible principles" to guide its implementation of a statutory provision, as the Commission has here, it has effected an unconstitutional delegation of legislative power. See American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert. granted sub nom., Browner v. American Trucking Associations, Inc., 120 S.Ct. 2003 (2000).
Second, even assuming the Commission had the authority to impose conditions on a license transfer application based on the "public interest" test, the legality of the conditions imposed in this Order is dubious. Indeed, some of the conditions are directly at odds with specific sections of the statute. For example, as with the SBC/Ameritech transaction, the parties have agreed to offer promotions to certain competing local exchange carriers. But many competing LECs will be unable to obtain these promotional deals, in violation of section 251(c)(3)'s and 251(c)(4)(B)'s nondiscrimination requirements. In addition, the carrier-to-carrier promotion condition violates section 251(i)'s pick-and-choose provision, since some carriers will not be able to access BA/GTE's facilities on the "same terms and conditions" as other carriers. Cf. American Tel. and Tel. Co. v. Central Office Tel., Inc., 524 U.S. 214 ("[T]he policy of non-discriminatory rates is violated when similarly situated customers pay different rates for the same services. It is that non-discriminatory policy which lies at the heart of the Communications Act.") (internal quotation marks omitted).(1)
In addition, the enforcement conditions set forth in this order undermine the ability of state commissions to administer section 251's market-opening provisions. Section 252 specifically confers upon state commissions the authority to oversee negotiation, arbitration, and approval of interconnection agreements. This Commission takes over this function only when a state commission fails to act to carry out its section 252 responsibilities. See 47 U.S.C. §252(e)(5). Contrary to this statutory scheme, this order interjects this Commission into many aspects of the section 252 process.
For these reasons, as well as for those set out in my statement in the SBC/Ameritech Order, I concur only in the Commission's decision to approve these license transfer applications and in the analysis it applies to assess BA/GTE's compliance with section 271 (Part V of this order).
1 Satisfaction of section 271's test for entry into long distance is, of course, predicated largely on compliance with sections 251 and 252. Accordingly, a violation of these sections could, at least theoretically, adversely affect a future application under section 271.