Re:

In the Matters of Implementation of the Telecommunications Act of 1996; Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Provision of Directory Listing Information under the Telecommunications Act of 1934, As Amended (CC Docket Nos. 96-115; 96-98; 99-**).

I support aspects of this Order, but write separately to express several reservations. I strenuously object to the majority's establishment of a presumptively reasonable rate for updated subscriber listing information in the absence of credible evidence supporting that decision. I also disagree with the majority's definition of "nondiscriminatory" and am troubled by the resulting imposition of requirements that will result in the micromanagement of the provision of operator services and directory assistance. Finally, I object to the initiation of a rulemaking proceeding that I find to be unnecessary.

I. Presumptive Rate for Updates

I dissent from the majority's conclusion that $0.06 per listing for "updated" subscriber listing information is a presumptively reasonable rate. Supra. at paras. 99-103. First, I cannot accept the notion that there is a single price that can be presumed reasonable when the cost of updated listings will vary according to the nature of the particular request. Regulators can attempt to regulate price, quantity, or quality. We cannot expect to regulate any two of these factors without affecting the third, and it is virtually impossible to regulate all three. In today's Order, the majority permits the requesting entity to choose the quantity and the quality of the listings, while the government sets the price. See supra. Part II.G. This leaves no variable of control to the supplier. There is simply no way to predict the cost of different types of requested subscriber listing information, in different quantities, and in different formats. This approach is analogous to requiring a grocer to charge $1 for every item in the store, without regard to the quantity or quality of any particular product.

The majority concedes that "the costs a carrier incurs in responding to requests for subscriber list information may vary, depending on the delivery schedules and levels of unbundling requested, among other factors." See supra. at par. 67. The majority nevertheless presumes that $0.06 will be a reasonable rate unless the carrier proves otherwise. Given their recognition that costs will vary depending on numerous factors, the establishment of a presumptive rate for updated listings seems rather arbitrary.

Moreover, assuming it was possible to demonstrate a particular cost for updated listings, there is no evidence on the record to support the majority's presumptive rate. The majority does not rest its conclusion on any factual basis; rather, as the Order concedes, it is "based on the assumptions that (1) a carrier's allocations of common costs and overheads should not vary significantly according to whether a directory publisher requests updated, rather than base file, subscriber list information; and (2) a carrier's incremental costs of providing subscriber list information should not significantly vary with the type of subscriber list information requested." Supra. at par. 100. (emphasis added). The majority provides no basis in fact for these assumptions, and I cannot fully agree with them. To the contrary, I would assume that, given the variety of requests permitted by today's Order, incremental costs can vary widely, particularly for smaller carriers, based on the nature of the request. Even if it were true that a large carrier with dedicated personnel to handle requests pursuant to section 222 may face small incremental costs in providing updated listings, it is not at all apparent that smaller carriers will face similar cost structures.

Finally, the statute does not require us to establish a presumptively reasonable rate for updates. By setting a $0.04 presumptively reasonable rate for the base file, the Commission facilitates the purchase of these listings by those entities interested in obtaining them. There is simply no need to establish a "one-size-fits-all" approach to setting a rate for updates, particularly in the absence of any evidence to support this rate.

II. Petitions for Reconsideration

I am also troubled by the Order's treatment of the petitions for reconsideration of the Local Competition Order, Second Report and Order. First, I do not agree with the Commission's interpretation of "nondiscriminatory." Moreover, I am concerned that, in applying that standard to operator services and directory assistance, today's Order results in micromanagement of these services and places too high of a burden on carriers, big and small, new entrants and incumbents, that operate their own operator services and directory assistance platform. It is not clear that Congress intended, through section 251(b), to establish an elaborate set of requirements for carriers that develop, or have developed, these capabilities.

Today's order affirms the Commission's definition of "nondiscriminatory access" for purposes of section 251(b). Supra. at par. 128. Section 51.217 of the Commission's rules defines "nondiscriminatory access" as access "that is at least equal to the access that the providing local exchange carrier itself receives" and includes "[t]he ability of a competing provider to obtain access that is at least equal in quality to that of the providing LEC."

I would interpret "nondiscriminatory" differently. To me, this term is not meant to address discrimination as between the incumbent LEC and requesting telecommunications carriers; rather it is meant to prohibit discrimination by the incumbent LEC as among requesting carriers. That is, nondiscriminatory access does not mean that the incumbent LEC must treat all requesting telecommunications carriers as it treats itself, but that the incumbent LEC must treat a particular requesting telecommunications carrier just as it treats all other requesting telecommunications carriers.

This interpretation is more consistent with the principle of statutory construction that "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."⁽¹⁾ In the next subsection of section 251, Congress explicitly required incumbent LECs to provide interconnection that is not only "nondiscriminatory," but also "that is at least equal in quality to that provided by the LEC to itself or to any subsidiary, affiliate, or any other party to which the carrier provided interconnection."⁽²⁾ If "nondiscriminatory" already included the concept of "equal in quality," this additional language would be mere surplusage, and statutes should be construed to avoid such a result. Congress could have imposed the "equal in quality" standard in section 251(b)(3), but did not do so.

Application of this nondiscriminatory standard produces troubling results in the majority's related interpretation of the requirements imposed by section 251(b)(3). I am concerned, for example, that the elaborate rebranding requirements perpetuated and expanded in today's Order go beyond what is necessary to implement this section. Insomuch as these rebranding requirements arise out of the nondiscriminatory standard, one wonders whether the majority would be prepared to impose a requirement that carriers rebrand their trucks and staff uniforms as complete implementation of this standard would seem to require. Moreover, I am concerned that the majority overlooks the fact that its elaborate requirements apply to all local exchange carriers, even those that are attempting to develop a platform for operator services and directory assistance. I fear that the obligations placed on such carriers in today's Order may discourage new investment in these platforms. I would prefer to let competitive forces dictate the how carriers provide operator services and directory assistance. Indeed, it appears that competition in this market is developing successfully.

III. "Publishing Directories in Any Format"

Finally, I find it unnecessary to initiate a Notice of Proposed Rulemaking regarding the availability of subscriber list information to requesting parties that intend to publish directories either electronically or orally. The statute requires that carriers make this information available "to any person upon request for the purpose of publishing directories in any format." Webster's Third New International dictionary is instructive. It defines "publish" to mean "to declare publicly: make generally known: disclose, circulate." Thus an operator orally "making known" subscriber list information to a requesting party over the telephone or an entity that "discloses" this information on an Internet site would clearly be engaging in activity that the dictionary would call "publishing."⁽³⁾ In an age where commentators discuss the potential for a "paperless society," I cannot believe that a reference to publishing "in any format" should be limited to the printing of subscriber list information on paper.

3. See Gertz v. Welch, 418 U.S.323, 332 (1974) (deciding principal issue of whether "a newspaper or broadcaster that 'publishes' defamatory falsehoods about an individual" may claim a constitutional privilege against liability); see also Reno v. ACLU, 521 U.S. 844, 853 (1997) ("[a]ny person or organization with a computer connected to the Internet can 'publish' information").