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June 10, 1999


Re: Promotion of Competitive Networks in Local Telecommunications Markets (WT Docket No. 99-217); Implementation of the Local Competition Provisions in the Telecommunications Act of 1996 (CC Docket No. 96-98); Wireless Communications Association International, Inc. Petition for Rulemaking to Amend Section 1.4000 of the Commission's Rules to Preempt Restrictions on Subscriber Premises Reception or Transmission Antennas Designed To Provide Fixed Wireless Services; Cellular Telecommunications Industry Association Petition for Rule Making and Amendment of the Commission's Rules to Preempt State and Local Imposition of Discriminatory And/Or Excessive Taxes and Assessments

Today's decision initiating a proceeding to promote the establishment of competitive networks in local telecommunications networks has a number of laudable aspects. In particular, I applaud our efforts to develop a record to assist us in determining the precise contours of Section 224 of the Act, 47 U.S.C.  224, which requires that utilities owning or controlling poles, ducts, conduits and rights of way provide access on reasonable and non-discriminatory terms to cable television systems and telecommunications carriers (other than incumbent local exchange carriers). I urge this Commission to take prompt action on this issue so that fixed wireless and other providers attempting to enter the local market have certainty as to the boundaries of that provision.

I am deeply troubled, however, by two aspects of this proceeding. First, the Commission decides today to seek comment on whether building owners permitting access to any telecommunications provider must make comparable access available to all such providers under nondiscriminatory terms and conditions. As authority for such action, today's decision posits that most slender of reeds: the Commission's ancillary jurisdiction under Sections 4(i) and Sections 303(r) of the Act, 47 U.S.C.  154(i), 303(r). But as Bell Atlantic v. FCC, 24 F.3rd 1441 (D.C. Cir. 1994) instructs, this Commission must be vigilant in overstepping its authority where private property rights are implicated, being careful not to regulate where it does not have specific statutory authority -- regardless of whether such regulation constitutes commendable public policy. I fear that today's proposal, if ultimately adopted by the Commission, may stray outside this agency's jurisdictional boundaries.

The second area which causes me great concern is the Commission's apparent inclination to deal piecemeal with the Supreme Court's recent remand of our rules implementing Section 251 of the Act, 47 U.S.C.  251. The Commission recently issued a further notice of proposed rulemaking to deal with the issues raised by the remand. Yet, in this proceeding, the Commission requests comment on whether unbundled access to riser cable and wiring within multiple tenant environments meets the requirements of Section 251. Although we do state that we will apply our decisions in the remand proceeding to the issue of riser cable and wiring in multiple tenant environments presented here, the better course of action in my judgment would be to consider all issues pertaining to unbundled network elements in one proceeding.