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March 18, 1999

Separate Statement
Commissioner Susan Ness

Re: Policy and Rules Concerning the Interstate, Interexchange marketplace; and Implementation of Section 254(g) of the Communications Act of 1934, as amended.

This Second Order on Reconsideration ensures that consumers will have information they need to make informed choices about the services they choose in a competitive marketplace.

The long distance marketplace is substantially competitive. As a result of this competition, many consumers are calling more and paying less. This is good.

But there have been two major problems that have limited the benefits consumers have enjoyed. One is the filed rate doctrine, under which a tariff deposited in some obscure corner of this agency is deemed to trump whatever arrangement the consumer makes directly with the carrier. The second is the confusing array of rate schedules and calling plans and surcharges that interexchange carriers have established.

The Commission has sought to attack the first problem, the filed rate doctrine, by preventing nondominant carriers from filing tariffs. When the courts rebuffed our initial efforts, we sought and obtained explicit forbearance authority from the Congress. I hope this order will clear the way for the court to lift its stay of the complete detariffing regime, so that carriers are compelled to honor the terms of the deals they strike with their customers, and no longer can circumvent them by invoking the entirely fictional "approval"of this agency for a tariff that no one has ever read, much less approved.

The Commission is attacking the second problem, public information about the terms of offerings, through today's order (and through a forthcoming "truth-in-billing" item). Carriers will now be required to provide reliable information upon reasonable request to consumers and to consumer advocates. They will also make the same information available on the their Websites, if they have them (all major carriers do). The result is likely to be a more informed buying decision on the part of consumers, and fewer unpleasant surprises when the bill arrives.

In an earlier phase of this proceeding, I voted with all of my colleagues to establish the public disclosure requirement, and I later dissented when three of my colleagues voted to eliminate this requirement. In the second decision, the Commission was wrestling with a perceived conflict between maintaining a public disclosure requirement, on the one hand, and invoking concern about the dangers of "tacit price collusion" as a reason for requiring detariffing, on the other. I acknowledged that conflict but resolved it differently, because for me there was ample justification for complete detariffing independent of the price collusion rationale.

Frankly, I don't really think it is all that likely that the absence of tariffs or of a public disclosure requirement will keep AT&T from finding out about MCI's "Five Cent Sundays." Indeed, common sense tells me that carriers are likely to be able to learn the terms of their major competitors' offerings, regardless of tariffs or public disclosure requirements. The question is whether consumers will have the information they need to make informed decisions. Today's ruling ensures that they will.

I also want to note that the public disclosure requirement was initially established at the specific request of Senators Stevens and Inouye, who felt it was useful to ensure that interexchange carriers honor their rate averaging and rate integration obligations under Section 254(g) of the Communications Act. Although today's order will be good for consumers throughout the country, I believe the citizens of Alaska and Hawaii will particularly benefit from the action we are taking today.