November 18, 1999

Re:	Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147.

I concur in the Commission’s decision to require incumbent local exchange carriers to unbundle the high frequency portion of local loops on which an incumbent carrier provides voice service. There are some customers, including some but not all small business and residential customers, who do not need the speed and capacity of the types of advanced services that are offered over a separate line, such as SDSL and HDSL services. These customers prefer the less costly alternative of an advanced services technology that can be provided over a single line, such as ADSL service. If a competitive data carrier must purchase a separate line to deploy advanced services to this segment of the advanced services market, it is placed at a significant disadvantage vis à vis the incumbent carrier, which can serve those customers more cost effectively by offering both voice and data services as a single-loop package. Consequently, I believe that requiring incumbent carriers to unbundle the high frequency portion of those loops on which the incumbent provides voice service is consistent with the requirements of sections 251(c)(3) and 251(d)(2).

At the same time, however, I believe that we should acknowledge the full consequences of our decision. Specifically, a spectrum unbundling requirement that is based on the needs of a narrow class of customers means that the network element will available, without limit, to all classes of customers. Data carriers certainly do not need unbundled spectrum to provide service to all customers. Indeed, today they are offering profitable services to thousands of customers without this benefit. However, because of section 251(c)(3)’s nondiscrimination principles, I do not believe that the Commission can restrict a carrier’s use of an unbundled element to services provided to a narrow class of customers. I would nevertheless have preferred a more candid assessment of the limited need for this new network element and a review of alternatives that might limit the availability of line sharing to those situations in which lack of access to unbundled spectrum actually impairs a competitor’s ability to provide service.

I also believe that it is important to acknowledge the following inescapable predicament to which the Commission’s new unbundling rules lead: Reducing the impairment of the ability of one category of competing carriers to provide a certain service (in this case, the data carriers) inevitably increases the impairment of a different class of carriers to provide a different service (here, the competing voice carriers). This outcome is not inconsistent with the statute, but it does put the Commission in the awkward position of favoring one class of telecommunications companies over another.

In addition, I wish to emphasize that I do not support the Commission’s decision to address this question in an order separate from Third Report & Order that was released less than two weeks ago. See Third Report & Order, Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, CC Docket 96-98 (rel. Nov. 5, 1999). I believe that it would have been more appropriate for the Commission to have implemented section 251’s unbundling requirements in a single proceeding, so that incumbent and competing local exchange carriers are given clear guidelines regarding their obligations and rights under the 1996 Act. Given the Commission’s long delay in releasing the Third Report & Order (which it adopted on September 15, 1999), I see no reason why these issues could not have been resolved simultaneously.

Finally, I dissent from the Commission’s decision to reexamine whether line sharing should remain on the list of network elements only after three years have passed. I believe that this decision is inconsistent with section 11’s requirement that, "in every even-numbered year," the Commission is required to "review all regulations issued under this Act in effect at the time of the review that apply to the operations or activities of any provider of telecommunications service" in order to determine whether those regulations continue to serve the public interest. 47 U.S.C. § 161(a) (emphasis added). The Commission has no authority to ignore this requirement, even if it thinks such review is unneeded.