6/10/99Separate Statement of Commissioner Michael K. Powell, Concurring Re: Promotion of Competitive Networks in Local Telecommunications Markets; Implementation of the Local Competition Provisions in the Telecommunications Act of 1996; and Cellular Telecommunications Industry Association Petition for Rule Making and Amendment of the Commission's Rules to Preempt State and Local Imposition of Discriminatory and/or Excessive Taxes and Assessments (CC Docket No. 96-98)

June 10, 1999

Separate Statement of Commissioner Michael K. Powell, Concurring

Re: Promotion of Competitive Networks in Local Telecommunications Markets; Implementation of the Local Competition Provisions in the Telecommunications Act of 1996; and Cellular Telecommunications Industry Association Petition for Rule Making and Amendment of the Commission's Rules to Preempt State and Local Imposition of Discriminatory and/or Excessive Taxes and Assessments (CC Docket No. 96-98)

I whole-heartedly support taking all appropriate steps to promote local competition. And, I commend the Wireless Bureau staff for their initiative in identifying the specific issues in this item and commencing this proceeding to examine them further. I do, however, have grave concerns about a couple components in this item.

First, under judicial precedent, this agency should not move toward rules that would effectuate a per se taking without specific authority to do so. See Bell Atlantic Telephone Co. v. FCC, 24 F.3d 1441 (D.C. Cir. 1994). Here, it seems that we propose to do just that. We have no specific statutory provision that directs, or "empowers," us to assert regulatory authority over owners of private property. Instead, this item proposes to rely solely on "ancillary" jurisdiction. Assuming one believes it is permissible to use such plenary jurisdiction to regulate a building owner or landlord, those powers seem to lack the specificity the law requires before treading onto constitutionally protected turf.

Moreover, this proposed rulemaking stands in stark contrast to our recent consideration of the limits of our authority when the rights of property owners are involved. Specifically, we refused to go beyond the language of Section 207 of the Telecommunications Act of 1996 regarding the placement of over-the-air reception devices on common and restricted access property because of constitutional and statutory authority concerns. Implementation of Section 207 of the Telecommunications Act of 1996, CS Docket No. 96-83, Second Report and Order, 13 FCC Rcd 23874, 23894-97, 39-45 (1998) (OTARD proceeding) ("because there is a strong argument that modifying our Section 207 rules to cover common and prohibited access property would create an identifiable class of per se takings, and there is no compensation mechanism authorized by the statute, we conclude that Section 207 does not authorize us to make such a modification" (relying on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982))). Yet here, we lack a provision analogous to Section 207, but nevertheless contemplate requiring "nondiscriminatory access" to privately owned rooftops and other areas a seemingly greater intrusion into the rights of property owners than we could stomach in the OTARD proceeding. In the context of a likely takings under the Fifth Amendment, this is not an area where we should be pushing the envelope of our "ancillary" statutory authority without, at least, being certain we have exhausted other alternatives.

Even though my mind remains open to what commenters present, the door is open only a sliver. We may eventually win an "ancillary jurisdiction" argument in court against the building owners and landlords, but it does not seem like good policy to propose a new regulatory dictate on these entities before other measures to evaluate the problem or pursue other non-regulatory initiatives prove inadequate. Nevertheless, I will concur with asking the questions we do in this item, anticipating an end result based on the record that is consistent with the law.

My second area of concern is the proposal to consider requiring incumbent LECs to make available "unbundled access" to riser cable and wiring they control within multiple tenant environments pursuant to section 251(c)(3) of the 1996 Act. I feel strongly about our duty to faithfully and quickly implement the Supreme Court's remand of the Commission's unbundled network element rule (the so-called Rule 319). I am therefore concerned about adding yet another possible "network element" to a list that the Supreme Court struck down without the thorough and thoughtful interpretation and application of the "necessary" and "impair" standards of section 251(d)(2).

I will not object to the inclusion of this issue in this item since it basically defers to the UNE remand proceeding, but I am troubled by the growing list of UNEs that we put out for comment before we implement the limiting principle as Congress and the Court required.