SEPARATE STATEMENT OF COMMISSIONER KEVIN J . MARTIN,
APPROVING IN PART AND DISSENTING IN PART

Re:	Verizon Wireless’s Petition for Partial Forbearance from the Commercial Mobile 
Radio Services Number Portability Obligation, Memorandum Opinion and Order, 
WT Docket No. 01-184, CC Docket No. 95-116

	I vote in support of the Commission’s decision to deny Verizon’s petition for 
permanent forbearance from the Commission’s wireless number local portability (LNP) 
rules but to grant carriers a twelve-month extension to come into compliance.  I dissent, 
however, from this item’s discussion of the legal standard used to assess Verizon’s 
petition.

	1.  Under the standard adopted by the majority, I do not find a sufficient basis for 
granting Verizon’s petition for permanent forbearance, and I agree that the Commission’s 
LNP mandate is “important” for the protection of consumers.

	As I have previously explained, I believe that competition is preferable to 
regulation.  Market forces are the best method of delivering choice, innovation, and 
affordability to consumers across our nation.  But that does not mean that the 
Commission has no role to play.  The Commission has an important role to play in 
creating an environment in which competition can flourish.  And where there are market 
failures, the Commission may need to step in and take action.

	The inability of consumers to keep their phone numbers when they switch carriers 
can be an impediment to competition.  It imposes a cost to switching carriers, which, for 
many consumers, could be significant.  In order to make a switch, consumers must 
contact the full range of people from whom they expect to receive calls, and many must 
also change business cards, letterhead, advertisements, and professional directories.  
These costs not only provide a disincentive for consumers that may want to switch 
providers, they also disadvantage new entrants to the market.

	Thus, LNP can be important for competition.  It allows consumers to choose a 
cheaper or more innovative wireless service without incurring some of these not 
insignificant switching costs.  Moreover, it allows consumers more easily to replace their 
wireline phones with wireless phones, providing direct competition to the incumbent 
wireline telephone providers.  A recent poll found that 18 % of wireless phone owners 
use their wireless phones as their primary phones.  LNP may be an important part of 
ensuring that competition with wireline phones continues to grow.

	The ability of new entrants to compete with established providers may become an 
even more important issue as additional deregulatory steps that the Commission has 
already taken go into effect.  For example, the spectrum cap regulations, which limit the 
amount of spectrum any carrier can hold and thus ensure that there can be at least four 
competitors in any given market, will sunset January 1, 2003.  In the post-spectrum-cap 
environment, in which some further consolidation may occur, the ability of smaller, new 
entrants to compete with even larger wireless carriers may be critical to maintaining a 
vibrant competitive wireless market and thereby ensure that consumers continue to 
receive the most innovative and affordable services.

	For all of these reasons, I support the Commission’s conclusion that our LNP 
rules are consistent with the protection of consumers and thus not to forbear permanently 
from applying them.  I also support the Commission’s decision to delay implementing 
those rules for a period of one year.  Several public safety groups – the National 
Emergency Number Association (NENA), the Association of Public-Safety 
Communications Officials-International, Inc. (APCO), and the National Association of 
State Nine One One Administrators (NASNA) – have sought a sixth-month delay to 
ensure our E911 rules are implemented effectively in conjunction with LNP.  As I have 
stated before, implementation of E911 must be a fundamental priority, and I agree that a 
short delay of LNP requirements is appropriate to ensure this implementation is not 
jeopardized.  I also find merit in certain carriers’ claims that implementing LNP at the 
same time that they implement pooling will create hardship, due to the need to ensure the 
technical workability of each functionality.  While I know that some carriers would have 
liked an even longer delay, I believe we have struck a fair balance between the carriers’ 
needs and those of consumers. 

	2.  Although I support the Commission’s conclusion under the forbearance 
standard adopted by the majority, I would have preferred to change this standard.  Section 
10 of the Communications Act (47 U.S.C. § 160) states in relevant part: “Any 
[forbearance] petition shall be deemed granted if the Commission does not deny the 
petition for failure to meet the requirements for forbearance under subsection (a) of this 
section within one year after the Commission receives it.”  47 U.S.C. § 160(c).  
Subsection (a) in turn states:

[T]he Commission shall forbear from applying any regulation or any 
provision of this chapter to a telecommunications carrier or 
telecommunications service, or class of telecommunications carriers or 
telecommunications services, in any or some of its or their geographic 
markets, if the Commission determines that – 

(1) enforcement of such regulation or provision is not necessary to ensure 
that the charges, practices, classifications, or regulations by, for, or in 
connection with that telecommunications carrier or telecommunications 
service are just and reasonable and are not unjustly or unreasonably 
discriminatory;

(2) enforcement of such regulation or provision is not necessary for the 
protection of consumers; and

(3) forbearance from applying such provision or regulation is consistent 
with the public interest.

47 U.S.C. § 160(a).

	I believe that the present item fails to give sufficient content to this language, in 
particular its use of the term “necessary.”  Section 10 requires, among other things, that 
forbearance be granted if enforcement of the challenged regulation is not “necessary” to 
ensure that charges, practices, etc., are just and reasonable, and enforcement of the 
regulation is not “necessary” for the protection of consumers.  47 U.S.C. § 160(a).  In this 
item, the Commission does not offer a definition of “necessary,” although it suggests that 
the term means something like “consistent with” or “important.”  For example, the item’s 
analysis rests on the conclusion that “permanent forbearance from the LNP requirements 
for CMRS carriers is not consistent with the protection of consumers” and finds that “we 
continue to view wireless LNP as providing important benefits to consumers.”  Order 
 16, 18 (emphasis added).  I find this ambiguity particularly troubling, because, in 
another context, the Commission has recently argued explicitly that the term “necessary” 
means “useful” or “appropriate.”  See FCC’s Petition for Rehearing or Rehearing En 
Banc, Fox Television Stations, Inc. v. FCC, Nos. 00-1222, et al., 2002 WL 1343461, at 5 
(D.C. Cir. Jun 21, 2002) (“Terms such as ‘necessary’ and ‘required’ must be read in their 
statutory context and, so read, can reasonably be interpreted as meaning ‘useful’ or 
‘appropriate’ rather than ‘indispensable’ or ‘essential.’”).  As I have explained elsewhere, 
I believe the term “necessary” should mean something more than merely “useful” or 
“appropriate.”  See Separate statement of Commissioner Kevin J. Martin, Implementation 
of the Cable Television Consumer Protection and Competition Act of 1992; Development 
of Competition and Diversity in Video Programming Distribution:  Section 628(c)(5) of 
the Communications Act; Sunset of Exclusive Contract Prohibition, Report and Order, 
CS Docket No. 01-290 (adopted June 13, 2002).  Rather, I believe the term should be 
read in accordance with its plain meaning, to mean something closer to “essential.”  In 
any event, I believe that it should mean something more than merely “useful,” 
“appropriate,” “consistent with,” or “important.”

	I am also troubled by the fact that this item does not state that the burden, in 
judging a forbearance petition, is on the Commission.  The language of section 10 places 
affirmative obligations on the Commission.  Subsection (c) requires that a forbearance 
petition is automatically granted (the “petition shall be deemed granted”) absent an action 
of the Commission to deny the petition.  Subsection (a) then directs the Commission to 
“determine” specific factors and then mandates forbearance (“the Commission shall 
forbear”) if those factors are met.  This language makes grant of a forbearance petition 
the default outcome, placing the burden of justifying a denial of a forbearance petition on 
the Commission.  In other words, the statute requires the Commission, when faced with a 
petition to forbear from applying a particular regulation, to grant the petition unless it can 
justify continued application of the regulation.

	Despite this statutory language, the Commission has, in the past, placed the 
burden on forbearance petitioners to demonstrate that a regulation is no longer necessary.  
See, e.g., Personal Communications Industry Association’s Broadband Personal 
Communications Services Alliance’s Petition for Forbearance for Broadband Personal 
Communications Services, 13 FCC Rcd 16857,  25 (1998) (“[T]he record does not show 
that today’s market conditions eliminate all remaining concerns about whether broadband 
PCS providers’ rates and practices are just, reasonable, and non-discriminatory.”).  While 
the present item appears to offer some improvement, it does not address this past 
precedent or explicitly state where the burden lies.  In my view, the Commission ought to 
clarify that the burden lies with the Commission.

	For these reasons, I dissent from the item’s discussion of the forbearance 
standard.  These are matters of critical importance to me, and, in this item, are of critical 
significance.  As I explained above, I am comfortable deciding that LNP is “useful” for 
or even “consistent with” the protection of consumers.  However, it is less clear that LNP 
could meet the more appropriate and higher standard of the statute – “necessary” – and I 
am disappointed that this question was not the subject of our debate.
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