August 14, 1997
Statement of Commissioner Susan Ness
Dissenting in Part
Re: Policy and Rules Concerning the Interstate, Interexchange Marketplace; Implementation
of Section 254(g) of the Communications Act of 1934, as amended
I respectfully dissent from that portion of today's decision that eliminates the public
disclosure requirement that was established in our Second Report and Order in this docket. I
continue to believe that the public disclosure requirement is a valuable safeguard that promotes
the policies of rate integration and rate averaging codified in Section 254(g) of the
Communications Act, as amended by the Telecommunications Act of 1996.
The principal holding of our prior order was that interstate, interexchange services
should generally be completely detariffed. I support that decision (as well as the limited
exceptions adopted as a matter of necessity today). Complete detariffing has several virtues
that make it decidedly preferable to permissive detariffing.
Chief among these is that the elimination of tariffs will increase the likelihood that
relationship between carriers and consumers will be fair. No longer will tariffs filed with the
FCC be used to establish one-sided relationships whose benefits accrue mainly to the carrier
and whose burdens and liabilities fall mainly on the consumer. Under complete detariffing, it
will be more likely that the consumer will be aware of the terms and conditions sought by the
carrier, and less likely that the carrier will try to portray them as being approved -- or even
required -- by the government.
Complete detariffing has other benefits, large and small. A major consideration,
discussed in some detail in our prior order, is that complete detariffing avoids problems
resulting from the "filed-rate doctrine." A comparatively minor benefit is that complete
detariffing reduces administrative burdens on the agency -- space requirements, personnel to
receive and to organize tariff filings, etc.
Collectively, all of these benefits are significant. In my view, they amply justify our
conclusion under Section 10 of the Communications Act to adopt a regime of complete, as
opposed to permissive, detariffing.
Our prior order stated that another benefit of complete detariffing was that it would
deter tacit pricing coordination among interexchange carriers. This objective is necessarily
somewhat in tension with the public disclosure requirement, which ensures that any person can
obtain the prices charged by any interexchange carrier for any detariffed service, upon request.
The majority resolves this tension by eliminating the public disclosure requirement. I would
resolve it by acknowledging that the considerations that weighed most heavily in my decision
on complete detariffing were those described in the preceding paragraphs, and not the fear of
tacit price coordination.
In my judgment, the public disclosure requirement should be maintained. This
requirement, adopted at the specific request of the principal sponsors of the rate integration and
geographic averaging provision of the statute, provides a ready mechanism for consumers to
ascertain whether carriers are in fact complying with their obligations under Section 254(g).
While the same information could be collected by the Commission in a complaint proceeding,
or even in routine audits, I believe this approach unnecessarily sacrifices the prophylactic
effect of requiring that the information be readily available to persons who lack the resources
to initiate proceedings at the Commission. Since the carriers must maintain the pricing
information in any event, and there has been no showing that carriers face significant burdens
in responding to requests for public disclosure, I would have preferred to retain the public
disclosure requirement and a higher level of confidence that rate integration and geographic
averaging responsibilities will be met.
My disagreement with the majority on this point does not extend to other issues in this
proceeding. Indeed, I find the case for complete detariffing compelling even though I do not
rely on concerns about tacit price coordination to reach this result. For those who believe that
complete detariffing reduces the prospect for tacit price coordination, the case for complete
detariffing is arguably even more compelling.