WPC 2B<W Z 3|x cpi)Courier 12pt (10cpi)Times New RomanTimes New Roman (Bold)HP LaserJet 5PHPLAS5P.WRSx  @,,,&QX@2C%S D3|j Courier 12pt (10cpi)Times New RomanHPLAS5SI.PRSx  @\&SX@CourierTimes New RomanTimes New Roman BoldTimes New Roman Italic2f X-UxKK?xxxXڞXx6X@JQX@ DPC2XWXP7  PT6QXP, DUC2X%YXU7  pTQXj DPC2X<ܒXP7  xTQXXd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddxHxxHvppDXd<"dxtldpxxdCourier 12pt (10cpi)Times New RomanTimes New Roman (Bold)Times New Roman (Italic)7jC:,ynXj\  P6G;XP7nC:,d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddd<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd e4   &k  &k #XP\  P6QWXP# pp  *xxXMay 18, 1999 ` `  hhC  e4%6 Concurring Statement of ~%Commissioner Susan Ness  ev4  eH4 "Re:XMemorandum Opinion and Order on Independent Telephone & Telecommunications  "Alliance's Petitions for Forbearance for 2% MidSize Local Exchange Companies and for  "8Reconsideration of the Amendment of the Commission's Rules to Establish Competitive  "Service Safeguards for Local Exchange Carrier Provision of Commercial Mobile Radio Services: Implementation of Section 601(d) of the Telecommunications Act of 1996(#  e 4  xThe Independent Telephone and Telecommunications Alliance's (ITTA) petition for forbearance  xprovides an opportunity to take a hard look at the Commission's rule requiring incumbent local  xexchange carriers (LECs), including midsize LECs, to form a separate affiliate before providing  xinregion commercial mobile radio service (CMRS). The rule is designed to prevent an  x+incumbent LEC from misallocating costs to its regulated local exchange business in order to  xbenefit its competitive CMRS affiliate operations and to detect discriminatory interconnection practices and pricing by the incumbent LEC against unaffiliated CMRS providers.  xVWhile the separate affiliate rule serves these important purposes, structural separation becomes  x_less essential as competition in both the local exchange market and CMRS market develops.  e4 x<Although the CMRS market is becoming increasingly competitive, I am not convinced from the  e4 xrecord in this proceeding that sufficient competition has developed in the local exchange market  xto protect consumers if we were to forbear from the separate affiliate rule. For this reason, I concur with three of my colleagues in denying ITTA's petition on behalf of midsized LECs.  xI only concur, rather than join my colleagues, in denying forbearance, because, in my view, the  xCommission did not conduct a rigorous forbearance analysis in this instance. The analysis  e74 x#primarily relied on findings made in the 1997 LECCMRS Report & Order with little  xconsideration of whether complaints had been lodged against midsize LECs or current  e 4 xcompetitive conditions. The Commission has a duty to undertake a thorough Section 10 analysis.  xlOf course this includes consideration of any evidence presented in the record, but the record should be the starting point, rather than the ending point, for the Commission's analysis.  xEOther factors could have been considered in the analysis. For example, before the separate  xaffiliate requirements were imposed on midsize LECs, there were few, if any, complaints lodged  xcby unaffiliated CMRS carriers against midsize LECs relating to improper crosssubsidization or  x8discriminatory interconnection. Interestingly, no unaffiliated CMRS carriers filed comments  xraising these concerns about midsize LECs if the separate affiliate requirement were to be lifted  xby the Commission. Also, as we transition to a competitive marketplace, there may be other less  xburdensome regulatory approaches to safeguard unaffiliated CMRS carriers and their customers  xfrom a midsize LEC's market power over local exchange service. Now that interconnection  xagreements have been entered into between LECs and unaffiliated CMRS carriers, these"(0*0*0*&"  xagreements could serve as a benchmark for assessing the interconnection terms provided by midsize LECs to unaffiliated CMRS carriers alleging interconnection discrimination.  x&Ultimately, consideration of these factors may not have changed the outcome of the Commission's  xdecision in this case. However, in the future, the Commission should strive to be more comprehensive and aggressive when conducting its forbearance analyses.  xpI look forward to working with both midsize LEC and CMRS carriers to develop a more robust  xrecord so that the Commission can determine whether our structural separation rules continue to promote competition or now detract from competition.