**Before the**

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | WC Docket No. 07-97          |
|                                  | * |                              |
| Petitions of Qwest Corporation   | ) |                              |
| for Forbearance Pursuant to 47   | * |                              |
| U.S.C. § 160(c) in the Denver,   | * |                              |
| Minneapolis-St. Paul, Phoenix,   |   |                              |
| and Seattle Metropolitan         | * |                              |
| Statistical Areas                | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: July 25, 2008 Released: July 25, 2008**

By the Commission: Chairman Martin issuing a statement; Commissioners
Copps and Adelstein concurring and issuing separate statements.

Table of Contents

**Para****.**

I. INTRODUCTION 1

II\. background 2

A. Regulatory Requirements 2

B. Prior Forbearance Relief 4

III\. discussion 11

A. Forbearance Standard 12

B. Application of the Section 10 Forbearance Criteria 13

1\. Forbearance Analysis for Dominant Carrier Regulation 14

a\. Threshold Market Analysis 14

\(i\) Services for Which Forbearance Is Requested 14

\(ii\) Geographic Scope of Analysis 15

\(iii\) Marketplace Competitors 16

\(iv\) Market Share Calculations 17

b\. Forbearance Analysis 24

\(i\) Mass Market Switched Access. 27

\(ii\) Enterprise Switched Access 33

2\. Forbearance Analysis for Section 251(c)(3) Unbundling Obligations 34

3\. Forbearance Analysis for *Computer III* Requirements 44

IV\. EFFECTIVE DATE 45

V. ORDERING CLAUSES 46APPENDIX A -- Commenters

APPENDIX B -- Residential Market Share

# INTRODUCTION

1.  In this Order, we address four forbearance petitions[^1] filed by
    Qwest Corporation (Qwest) pursuant to section 10 of the of the
    Communications Act of 1934, as amended (Act),[^2] seeking certain
    forbearance relief in specific areas in the Denver, Minneapolis-St.
    Paul, Phoenix and Seattle Metropolitan Statistical Areas (MSAs).[^3]
    Specifically, Qwest seeks forbearance from loop and transport
    unbundling obligations pursuant to sections 251(c) and
    271(c)(2)(B)(ii).[^4] For mass market and enterprise services, Qwest
    also seeks forbearance from Part 61 dominant carrier tariffing
    requirements;[^5] Part 61 price cap regulations;[^6] dominant
    carrier requirements arising under section 214 of the Act and Part
    63 of the Commission's rules concerning the processes for acquiring
    lines, discontinuing services, and assignments or transfers of
    control,[^7] and for certain of Qwest's services, *Computer III*
    requirements including comparably efficient interconnection (CEI)
    and open network architecture (ONA) requirements.[^8] For the
    reasons set forth below, we find that the record evidence does not
    satisfy the section 10 forbearance standard with respect to any of
    the forbearance Qwest seeks, and, accordingly, we deny the requested
    relief in the four MSAs.

# background 

## Regulatory Requirements

2.  *Dominant Carrier Regulation, Section 251(c)(3) and Section
    271(c)(2)(B)(ii) Unbundling Obligations*. As noted above, the Qwest
    Petitions request forbearance from dominant carrier regulation with
    respect to mass market and enterprise services and forbearance from
    certain of the unbundling obligations of section 251(c)(3) and
    271(c)(2)(B)(ii). Dominant carrier regulations include, among other
    things, requirements arising under section 214 related to transfer
    of control and discontinuance, cost-supported tariffing
    requirements, and price regulation for services falling under the
    Commission's jurisdiction.[^9] Section 251(c)(3) imposes on
    incumbent local exchange carriers (LECs) "\[t\]he duty to provide,
    to any requesting telecommunications carrier . . . nondiscriminatory
    access to network elements on an unbundled basis . . . in accordance
    with . . . this section and section 252."[^10] Section
    271(c)(2)(B)(ii) of the Act, checklist item 2, incorporates and is
    coextensive with section 251(c)(3). Under this provision, a Bell
    Operating Company (BOC) must provide "nondiscriminatory access to
    network elements in accordance with the requirements of sections
    251(c)(3) and 252(d)(1)."[^11] The *Qwest Omaha Forbearance Order*
    described the relevant dominant carrier, section 251(c)(3) and
    section 271(c)(2)(B)(ii) unbundling obligations, so we need not
    repeat that summary here.[^12]

3.  *Computer Inquiry Requirements.* Facilities-based wireline carriers
    also are subject to *Computer Inquiry* requirements. In the
    *Computer III* proceedings,[^13] the Commission gave the BOCs the
    choice of continuing to comply with the *Computer II* structural
    separation requirements or of providing enhanced services pursuant
    to nonstructural safeguards. More specifically, the Commission
    adopted CEI, ONA, and other nonstructural requirements as an
    alternative to the *Computer II* structural separation requirements
    for the BOCs.[^14] The *Verizon 6 MSA Forbearance Order* described
    these obligations in detail, so we do not repeat that discussion
    here.[^15]

## Prior Forbearance Relief 

4.  *Qwest Omaha Forbearance Order.* On December 2, 2005, the Commission
    released an order granting in part a forbearance petition filed by
    Qwest seeking forbearance from the application of certain dominant
    carrier regulation and UNE obligations in the Omaha MSA.[^16]
    Specifically, the Commission forbore from applying its dominant
    carrier price cap, rate-of-return, tariffing, and 60-day
    discontinuance and transfer of control rules to Qwest's mass market
    switched access and mass market broadband Internet access services
    in the Omaha MSA.[^17] The Commission denied forbearance relief with
    respect to Qwest's enterprise telecommunications services because
    Qwest had failed to provide sufficient information to meet the
    statutory forbearance criteria.[^18]

5.  With respect to Qwest's requested forbearance from unbundling
    obligations, in the *Qwest Omaha Forbearance Order*, the Commission
    held that section 251(c)(3) had been "fully implemented"
    nationwide,[^19] and it granted Qwest forbearance from section
    251(c)(3) unbundling obligations in nine of the 24 wire centers in
    the Omaha MSA. In granting this relief, the Commission relied on the
    state of competition, and level of deployment of competitive
    last-mile facilities in those nine wire centers, as well as certain
    other regulatory safeguards, such as continued availability of
    section 251(c)(4) resale and section 271 unbundled elements.[^20]
    The Commission concluded that, in areas served by those nine wire
    centers, Cox Communications, Inc. (Cox), the local cable operator,
    had built out "extensive facilities" and was using those facilities
    to provide service to customers in competition with Qwest.[^21]
    Although Cox leased some wholesale last-mile inputs from Qwest
    pursuant to voluntary commercial agreements, Cox provided
    competition to Qwest without accessing UNEs provided by Qwest
    pursuant to section 251(c)(3).[^22] To avoid customer disruption,
    the Commission adopted a six-month transition period for customers
    of competitive LECs, other than Cox, that relied on Qwest's UNEs
    offered pursuant to section 251(c)(3).[^23]

6.  The Commission declined to grant Qwest forbearance from its section
    251(c)(3) unbundling obligations in the remaining 15 wire centers in
    the Omaha MSA where Cox's facilities deployment was less
    extensive.[^24] The Commission also denied Qwest forbearance from
    certain section 271 obligations, to which Qwest is subject as a
    BOC.[^25] Finally, the Commission denied Qwest forbearance from
    section 271 checklist items 4, 5, and 6, which establish independent
    obligations to provide unbundled access to local loops, local
    transport, and local switching,[^26] and it relied on the continued
    availability of wholesale access to Qwest's network under section
    271 in forbearing from section 251(c)(3).[^27]

7.  *ACS UNE Forbearance Order.* On September 30, 2005, ACS filed a
    petition with the Commission seeking relief from section 251(c)(3)
    unbundling obligations similar to that granted to Qwest in the
    *Qwest Omaha Forbearance Order.*[^28] On December 28, 2006, the
    Commission, in the *ACS UNE Forbearance Order*, granted in part
    ACS's petition for forbearance from section 251 unbundling. Subject
    to certain specific conditions, the Commission granted ACS
    forbearance from the obligation to provide unbundled loops and
    dedicated transport pursuant to sections 251(c)(3) and 252(d)(1) in
    certain wire centers in the Anchorage study area based on the
    development of facilities-based competition and other factors.[^29]
    First, the Commission granted ACS relief from section 251(c)(3)
    unbundling obligations and section 252(d)(1) pricing obligations in
    the five of the 11 wire centers in the Anchorage study area where it
    found that the level of facilities-based competition by GCI, ACS's
    main competitor in the Anchorage study area, ensured that market
    forces would protect the interests of consumers and that such
    regulation, therefore, was unnecessary.  Second, as a condition of
    the order, the Commission required ACS to make loops and certain
    subloops available in those five wire centers, by no later than the
    end of the transition period, at the same rates, terms and
    conditions as those negotiated between GCI and ACS in Fairbanks,
    Alaska until reaching agreement on commercially negotiated rates. 
    Third, the Commission provided for a one-year transition period
    before the forbearance grant would take effect.[^30]  Since that
    time, ACS and GCI reached an agreement, governing ACS's continued
    provision of access to the specified elements in the Anchorage study
    area during the next five years.[^31]

8.  *ACS Dominance Forbearance Order.* On August 20, 2007, the
    Commission conditionally granted in part an additional forbearance
    petition filed by ACS, which sought forbearance in the Anchorage
    study area from certain statutory and regulatory dominant carrier
    obligations.[^32] In particular, ACS sought forbearance comparable
    to the relief from dominant carrier regulation of mass market
    switched access service the Commission granted to Qwest in the Omaha
    MSA.[^33] In the *ACS Dominance Forbearance Order*, the Commission
    recognized that ACS's forbearance petition raised significantly
    different issues from those raised in the *Qwest Omaha* proceeding
    because ACS is a rate-of-return carrier while Qwest is a price cap
    carrier. Given the evidence that ACS faced extraordinary
    facilities-based competition from GCI in Anchorage, the Commission
    found that granting partial relief, subject to conditions, was
    justified.[^34] Specifically, with respect to the requested relief
    that was similar to that granted to Qwest in the Omaha MSA, the
    Commission forbore from applying to ACS's switched access services
    the rate-of-return, tariffing, discontinuance, and transfer of
    control regulations that apply to dominant carriers, subject to
    various conditions.[^35]

9.  *Verizon 6 MSA Forbearance Order.* On September 6, 2006, Verizon
    sought certain forbearance relief in the Boston, New York,
    Philadelphia, Pittsburgh, Providence, and Virginia Beach MSAs.[^36]
    Specifically, Verizon sought relief from dominant carrier regulation
    of its mass market switched access services,[^37] from section
    251(c)(3) loop and transport unbundling obligations,[^38] and from
    all *Computer III* obligations (*e.g.*, ONA and CEI
    requirements).[^39] On December 4, 2007, the Commission found that
    the record evidence did not satisfy the section 10 criteria for
    forbearance and therefore denied the requested relief in the six
    MSAs.[^40] In particular, among other factors, the Commission found
    that the record did not establish the existence of sufficient
    facilities-based competition to warrant forbearance.[^41]

10.  *Qwest Terry, Montana Forbearance Order*. On January 22, 2007,
    Qwest filed a petition seeking forbearance from section 251(c),
    271(c), and from otherwise regulating Qwest as an incumbent LEC in
    the Terry, Montana local exchange.[^42] On April 21, 2008, the
    Commission granted Qwest's petition for forbearance from certain
    requirements of sections 251(c), 271(c), and 252, and otherwise
    denied the petition.[^43] The competitive situation in the Terry
    exchange was unique. The Commission found that the sole competitors
    in the Terry exchange are Qwest and Mid-River Telephone Cooperative,
    Inc. (Mid-Rivers), and that there was little potential for
    additional competitive entry.[^44] Qwest and Mid-Rivers each has its
    own independent network in this market, and both were treated as
    incumbent LECs for purposes of section 251.[^45] In granting Qwest
    forbearance from unbundling obligations, the Commission relied in
    part on evidence that Mid-Rivers serves approximately 93 percent of
    the access lines in the Terry exchange, was capable of serving the
    entire exchange over its own facilities,[^46] and did not rely on
    UNEs from Qwest to provide service in this market.[^47]

# discussion

11. Based on the record evidence filed in this proceeding, we find that
    granting the Qwest Petitions for forbearance would not be consistent
    with section 10 of the Act. Specifically, we find that the criteria
    of section 10 are not satisfied with regard to forbearance from the
    relevant dominant carrier requirements, UNE requirements, and
    *Computer III* obligations. We therefore deny the four Qwest
    Petitions in their entirety.[^48]

## Forbearance Standard 

12.  The Commission is required to forbear from any statutory provision
    or regulation if it determines that: (1) enforcement of the
    regulation is not necessary to ensure that the telecommunications
    carrier's charges, practices, classifications, or regulations are
    just, reasonable, and not unjustly or unreasonably
    discriminatory; (2) enforcement of the regulation is not necessary
    to protect consumers; and (3) forbearance from applying such
    provision or regulation is consistent with the public interest.[^49]
    In making such determinations, the Commission also must consider
    pursuant to section 10(b) "whether forbearance from enforcing the
    provision or regulation will promote competitive market
    conditions."[^50]

## Application of the Section 10 Forbearance Criteria

13. In this section, we evaluate Qwest's forbearance requests under the
    statutory criteria of section 10(a) of the Act.[^51] Forbearance is
    warranted under section 10(a) only if all three elements of the
    forbearance criteria are satisfied.[^52] The Commission previously
    has evaluated requests for relief similar to that sought by Qwest in
    the *Qwest Omaha Forbearance Order*, the *ACS UNE Forbearance
    Order*, the *ACS Dominance Forbearance Order*, and the *Verizon 6
    MSA Forbearance Order*, and the analytical framework established in
    that precedent guides our actions here.[^53]

### Forbearance Analysis for Dominant Carrier Regulation 

#### Threshold Market Analysis

##### Services for Which Forbearance Is Requested

14. Qwest seeks identical forbearance relief in each of the four
    petitions at issue in this proceeding. Specifically, Qwest seeks
    forbearance from the following dominant carrier regulations to the
    extent they apply to its interstate mass market and enterprise
    switched access services:[^54] tariffing requirements and price cap
    regulation, as well as dominant carrier requirements concerning the
    processes for acquiring lines, discontinuing services, and
    assignments or transfers of control.[^55]

##### Geographic Scope of Analysis 

15.  Qwest seeks forbearance from dominant carrier regulation of its
    mass market and enterprise switched access services in the following
    geographic areas: (1) the Qwest wire centers located within the
    Denver-Aurora MSA (Denver MSA), except for the Fairplay wire center
    for which Qwest does not seek relief; (2) the 64 Qwest wire centers
    located within the boundaries of the Phoenix-Mesa-Scottsdale MSA
    (Phoenix MSA); (3) the 26 Qwest wire centers located within the
    boundaries of the Seattle-Bellevue-Everett Metropolitan Division
    (Seattle MSA);[^56] and (4) the 58 Qwest wire centers located within
    the boundaries of the Minneapolis-St. Paul-Bloomington MSA
    (Minneapolis-St. Paul MSA).[^57] For purposes of analyzing dominant
    carrier regulation of Qwest in this proceeding, we define the
    relevant geographic market to be the specific areas identified by
    Qwest within these four MSAs. As indicated in the Commission's
    precedent, we perform our forbearance analysis on the geographic
    basis requested by the petitioner unless the record indicates
    compelling reasons to narrow it.[^58] We find no such evidence here,
    and thus evaluate each of Qwest's mass market and enterprise
    switched access forbearance requests on the basis of the specific
    market areas described above.[^59]

##### Marketplace Competitors

16.  We find that Qwest is subject to competition in the four MSAs from
    both intra- and intermodal competitors.[^60] The record indicates
    that a number of competitive LECs (*i.e.*, intramodal competitors)
    compete with Qwest for mass market and enterprise customers in
    certain subsections of the four MSAs. The evidence also shows,
    however, that, in serving mass market and enterprise customers,
    these intramodal competitors rely significantly on access to Qwest's
    last-mile network facilities, including UNEs, and Qwest's other
    wholesale services in all four MSAs.[^61] We also find that, in
    these four MSAs, Qwest is subject to intermodal competition,
    particularly from cable operators, primarily for residential
    services.[^62] We do not include providers of "over-the-top" or
    nomadic voice over Internet Protocol (VoIP) services in our
    competitive analysis because there are no data in the record that
    justify finding that these providers offer close substitute
    services.[^63]

##### Market Share Calculations 

17.  Many commenters have addressed how the Commission should calculate
    market share for purposes of this proceeding. The approach we adopt
    in this order is consistent with the Commission's methodology in
    past proceedings.[^64]

###### Mass Market Switched Access

18.  *Wireline Households*. In support of its petitions, Qwest submitted
    actual line count data for its own retail switched access lines,
    data regarding its fixed VoIP subscribers, and line count data
    regarding its competitors' retail lines provisioned through reliance
    on Qwest's wholesale last-mile facilities.[^65] Qwest disaggregated
    these retail and wholesale line counts by residential and business
    customers. We rely on Qwest's data as the most reliable evidence of
    its competitive presence and find, consistent with the *Qwest Omaha*
    line of precedent, that the data Qwest has submitted regarding
    residential customers are a reasonable proxy for the number of mass
    market switched access customers in each of the four MSAs at
    issue.[^66] In addition, Qwest submitted white page listing data to
    estimate the number of competitive wireline residential access lines
    that do not rely on Qwest's wholesale services.[^67] For purposes of
    this proceeding, we find Qwest's white page listing data, although
    an inexact estimate, are a reasonable proxy for the number of total
    residential access lines in service.[^68] Therefore, in accord with
    the Commission's precedent, we rely on these data to estimate market
    shares in the Denver, Minneapolis-St. Paul, and Seattle MSAs.[^69]
    For the Phoenix MSA, Cox submitted its actual access line
    counts.[^70] Due to the lack of record evidence of substantial
    additional competition for residential customers in the Phoenix MSA
    from competitive LECs using self-provisioned last-mile facilities,
    we find no reason to rely on Qwest's white page listing data in the
    Phoenix MSA.

19.  *Mobile Wireless-Only Households*. In calculating market shares, we
    believe it is appropriate to include wireless-only households
    (*i.e.*, residential telephone customers who have "cut the
    cord").[^71] In particular, we find that mobile wireless service
    should be included in the local services product market to the
    extent that it is used as a complete substitute for all of a
    consumer's voice communications needs. Over the past several years,
    as wireless substitution rates have continued to rise, the
    Commission has begun including such intermodal substitution in its
    competitive analyses of the local services market.[^72]

20. We recognize, as certain commenters have argued, that mobile
    wireless service and wireline telephone services are not perfect
    substitutes.[^73] As the Commission stated in the *Competitive ETC
    Order*, "the majority of households do not view wireline and
    wireless services to be direct substitutes" and most households
    purchase mobile wireless telephony service in addition to a
    customer's existing wireline service.[^74] We therefore limit the
    inclusion of mobile wireless services in our competitive analysis,
    and include such services only to the extent a household has elected
    to forgo wireline telephone service, rather than use mobile wireless
    services only as a complement to wireline telephony services. We
    believe this approach reasonably approximates the extent to which
    residential telephony customers view mobile wireless and wireline
    services as substitutes, and is the approach most consistent with
    the Commission's precedent.[^75]

21.  Finally, although various commenters suggest that we rely on the
    national wireless-only household data published by the Center for
    Disease Control (CDC) or the more localized information provided by
    Telephia,[^76] we decline to do so. First, as explained below, with
    respect to every MSA but Phoenix, our decision to include or not
    include these data are not outcome determinative. Second, with
    respect to the CDC data, we believe it is most consistent with our
    geographically-specific analysis in the *Qwest Omaha* line of
    precedent to rely on a similarly geographically-specific measure of
    wireless substitution.[^77] In the present context, Qwest seeks
    regulatory relief for particular MSAs based on the specific
    competitive conditions in those markets, but the CDC estimates and
    the record generally do not contain reliable data of this type.
    Third, and most importantly, even if we were to consider the CDC or
    Telephia data, we could not determine with any degree of confidence
    that the statutory criteria for granting forbearance would be met.
    For example, Qwest's submission of geographically-specific data
    regarding the measure of wireless substitution in the four MSAs
    primarily consists of information Telephia published based on some
    sort of survey conducted of the wireless-only household rate in
    specific market areas, including the Denver, Phoenix,
    Minneapolis-St. Paul, and Seattle metropolitan areas.[^78] If we
    were to rely on the Telephia data, Qwest's market share would be
    approximately **\[REDACTED\]** percent in the Phoenix MSA, which, in
    conjunction with other evidence, likely would be sufficient to grant
    forbearance under the Commission's precedent.[^79] However, the only
    substantive information in the record regarding the Telephia survey
    is a news release that does not describe Telephia's methodology or
    provide any other information to support the significance of the
    data. To the contrary, the news release states that the
    "\[d\]ifferences in wireless penetration rates between cities may
    not be statistically significant."[^80] Thus, the margin of error in
    such a survey alone would not allow us to draw any firm conclusion
    as to whether the criteria had been met. Reliance on the CDC survey
    is similarly problematic, as the CDC regional and metropolitan
    estimates present methodological problems, yielding inconclusive
    results.[^81] For instance, if we were to rely on CDC's regional
    wireless substitution estimate for the "West" -- which CDC defines
    to include Arizona, and hence, the Phoenix MSA -- Qwest's market
    share would be approximately **\[REDACTED\]** percent in the
    Phoenix, MSA.[^82] However, we find that the geographic
    subcategories in the CDC survey are not sufficiently disaggregated
    for purposes of evaluating competition in particular MSAs.
    Additionally, with respect to CDC's metropolitan estimates, we find
    significant evidence in the record that the wireless substitution
    rate varies substantially depending on differences between urban and
    rural areas.[^83] Finally, in terms of methodology, the CDC
    estimates regional wireless substitution by adults, rather than
    households; if we relied on these estimates in our market share
    calculations, we could overstate the percentage of wireless-only
    households, suggesting that forbearance might not be warranted in
    the Phoenix MSA under our precedent. In any event, the measure of
    wireless substitution by adults is not consistent with the other
    competitive data in the record, nor with the data the Commission has
    relied upon in prior proceedings. Nor does the record reveal a
    reliable methodology for adapting these data for use in evaluating
    competition in particular MSAs.[^84] The record also contains
    additional arguments and estimates of the appropriate measure of
    wireless substitution, though no estimates that are not subject to
    concerns similar to those identified above.

22.  For these reasons, Qwest has not sufficiently supported its case
    for forbearance on the basis of reliable, geographically-specific
    data regarding the measure of wireless substitution in the four
    MSAs.[^85] We understand the importance of our decision to insist
    upon reliable data and recognize that Qwest might have qualified for
    some forbearance upon a better evidentiary showing. Qwest may, of
    course, refile its petitions and our decision in this instance does
    not prejudge the outcome in any future proceeding.[^86] We emphasize
    that petitioners relying on mobile wireless substitution to support
    forbearance relief should submit complete and reliable data that is
    geographically specific to the areas for which forbearance is
    sought.

###### Enterprise Switched Access

23.  In the absence of sufficient record evidence to reliably estimate
    the total number of enterprise switched access lines in service in
    any of the four MSAs,[^87] we find the record cannot support
    forbearance for these services in any of the four MSAs. As noted
    above, Qwest submitted actual line count data for its own retail
    switched access lines, data regarding its fixed VoIP subscribers,
    and line count data regarding its competitors' retail lines
    provisioned through reliance on Qwest's wholesale last-mile
    facilities.[^88] Several of Qwest's intramodal competitors for
    enterprise switched access services also submitted actual line count
    data totals for their retail access lines in various markets, as did
    Cox in the Phoenix MSA.[^89] In none of the four MSAs did all of the
    major competitors for enterprise switched access services submit
    their own actual access line data. Because it lacks access to its
    competitors' internal data, Qwest submitted white page listing data
    to estimate the number of enterprise switched access lines that do
    not rely on its wholesale services. Although we find that white page
    listing data provides a reasonable estimate of residential lines, we
    find such data to be unreliable in estimating the number of
    enterprise switched access lines in service.[^90]

#### Forbearance Analysis 

24.  Qwest asks the Commission to forbear from applying certain dominant
    carrier rate and tariff regulations to its provision of mass market
    and enterprise switched access services in the Phoenix, Denver,
    Minneapolis-St. Paul, and Seattle MSAs.[^91] Forbearing from these
    dominant carrier requirements would free Qwest from dominant carrier
    price cap rules.[^92] Further, Qwest would no longer be required to
    file tariffs for these services on seven or more days' notice, but
    could file tariffs on one day's notice or could offer these services
    under negotiated rates and terms.[^93] Qwest also seeks forbearance
    in these four MSAs from dominant carrier requirements governing the
    section 214 processes for transfers of control and discontinuance of
    service.[^94] As explained below, we conclude that Qwest is not
    entitled relief from dominant carrier regulation under the section
    10 criteria.

25. We begin our section 10(a)(1) analysis by considering the market for
    the services for which Qwest seeks relief and the customers that use
    them.[^95] Qwest seeks forbearance from dominant carrier regulation
    in its provision of mass market and enterprise switched access
    services in four MSAs.[^96] Switched access services use local
    exchange switches to route originating and terminating interstate
    toll calls. As explained in the *Qwest Omaha Forbearance Order*,
    *ACS Dominance Forbearance Order*, and the *Verizon 6 MSA
    Forbearance Order*, the Commission has recognized that providers of
    access services serve two distinct customer groups: (1)
    interexchange carriers, which purchase access service as an input
    for the long distance service that they provide to their end-user
    customers and (2) end users who benefit from the ability, provided
    by access service, to place and receive long distance calls.[^97]
    Qwest's switched access charges have two essential rate
    components: (1) the Subscriber Line Charge, or SLC, which is a
    flat-rated charge imposed on end-users to recover the
    interstate-allocated portion of local loop costs[^98] and (2)
    carrier's carrier charges, which Qwest imposes on interexchange
    carriers for access to its end user customers for the purpose of
    originating or completing interstate toll calls.[^99]

26. To grant forbearance, we first must determine that enforcement of
    dominant carrier regulations is unnecessary to ensure that charges,
    practices, classifications, or regulations for Qwest's interstate
    switched access services are just and reasonable and not unjustly or
    unreasonably discriminatory.[^100] In its petition, Qwest argues
    that retail customers throughout the relevant MSAs have access to a
    wide range of competitive alternatives for affordable local
    telephone service offering ubiquitous facilities-based alternatives
    to Qwest's service.[^101] Qwest argues that, due to this extensive
    competition, dominant carrier regulation is no longer necessary in
    these MSAs to ensure just, reasonable and nondiscriminatory rates
    but that market forces will protect the interests of consumers; thus
    the regulations at issue no longer are necessary for that
    purpose.[^102] As discussed above, in support of its argument that
    it is entitled to relief from dominant carrier regulation, Qwest
    submitted data including its own switched access lines, the number
    of resale and QPP/QLSP lines, and estimates of facilities-based
    residential and enterprise access line counts disaggregated by
    capacity for each of the four MSAs.[^103] Qwest primarily bases the
    estimates of facilities-based residential and enterprise switched
    access line counts upon its competitors' white page listings
    data.[^104]

##### Mass Market Switched Access. 

27.  Based on this record, we find that Qwest does not satisfy section
    10(a)(1) for mass market switched access services in any of the four
    MSAs. In particular, Qwest's market shares in the MSAs at issue,
    measured consistent with our approach in the *Qwest Omaha
    Forbearance Order*, *ACS Dominance Forbearance Order*, and *Verizon
    6 MSA Forbearance Order* are sufficiently high to suggest that
    competition in these areas is not adequate to ensure that the
    "charges, practices, classifications, or regulations . . . for \[\]
    or in connection with that . . . telecommunications service are just
    and reasonable and are not unjustly or unreasonably discriminatory"
    absent the regulations at issue.[^105] The record evidence does not
    reflect that in any of the four MSAs do the cable operators, even in
    the aggregate, have more than a **\[REDACTED\]** percent share of
    the market for mass market telephone services in an MSA.[^106] In
    addition, at least in the Denver, Minneapolis-St. Paul and Seattle
    MSAs, even if we were to rely on the national wireless-only
    household data published by the CDC as Qwest advocates, Qwest's
    estimated market shares for residential telephone services do not
    approach levels at which the Commission has granted forbearance in
    prior proceedings. Specifically, even including competition that
    relies on section 251(c)(4) resale and Qwest's QPP/QLSP service, and
    assuming *arguendo* that 15.8 percent of households in each of these
    three MSAs is a wireless only household, Qwest's estimated market
    shares are approximately: Denver **\[REDACTED\]** percent,
    Minneapolis-St. Paul **\[REDACTED\]** percent, and Seattle
    **\[REDACTED\]** percent.[^107] Qwest's market share in the Phoenix
    MSA is lower, although in part for the reasons explained
    above,[^108] we are unable to find on the present record that Qwest
    is subject to sufficient competition to warrant the requested
    forbearance.

28.  Although record evidence here shows competitive facilities
    deployment used in the provision of mass market telephone service by
    cable operators in the four MSAs at issue, we find that it does not
    match the evidence of competition relied upon in previous orders
    granting forbearance. In the absence of comparable evidence of
    facilities-based competition, we are not persuaded by Qwest's
    suggestion that its market shares in the four MSAs are sufficient to
    justify forbearance from dominant carrier regulation here. Indeed,
    where the Commission has found an incumbent carrier to be
    nondominant in the provision of access services, it had a retail
    market share of less than 50 percent and faced significant
    facilities-based competition.[^109] Although our forbearance
    analysis here is merely guided by our dominance precedent, we find
    it significant that, in granting forbearance from dominant carrier
    regulation of mass market switched access services in the *Qwest
    Omaha Forbearance Order* and *ACS Dominance Forbearance Order*, the
    Commission similarly emphasized the evidence of the competitive
    gains of facilities-based competitors, in conjunction with the
    incumbent LECs' overall market shares, in its marketplace
    analysis.[^110]

29. With respect to elasticity of demand and firm cost, size, and
    resources, we find no basis to reach different conclusions than
    those in the *Qwest Omaha Forbearance Order* and *ACS Dominance
    Forbearance Order*.[^111] However, we do not find those factors, in
    and of themselves, adequate to conclude that competition is
    sufficient to ensure just, reasonable, and not unreasonably
    discriminatory rates and practices under section 10(a)(1), given the
    concerns identified above.

30. Moreover, we find no other basis in the record for concluding that
    section 10(a)(1) is satisfied with respect to Qwest's requested
    forbearance from dominant carrier regulations for mass market
    switched access services. We find that the evidence considered in
    our market analysis above provides the best evidence regarding the
    state of competition in the relevant markets. In particular, we
    reject Qwest's attempt to demonstrate that a particular MSA is
    competitive by calculating percentage reductions in retail
    lines.[^112] There are many possible reasons for such decreases
    unrelated to the existence of last-mile facilities-based
    competition. For example, as the Commission explained in the *ACS
    UNE Forbearance Order*, the abandonment of a residential access line
    does not necessarily indicate capture of that customer by a
    competitor, but may indicate that the consumer converted a second
    line used for dial-up Internet access to an incumbent LEC broadband
    line for Internet access.[^113]

31. As discussed above, section 10(a)(1) requires that we determine that
    enforcement of the regulations at issue is unnecessary to ensure
    that charges, practices, classifications or regulations for the
    services for which Qwest seeks relief are not unjustly or
    unreasonably discriminatory.[^114] On the basis of the record
    evidence and the application of the section 10(a) statutory
    criteria, we find that forbearance from dominant carrier regulation
    for the services and geographic areas at issue is unjustified. This
    matter is distinguishable from the cases cited by Qwest and from
    prior orders in which the Commission granted dominant carrier
    relief. Specifically, there is inadequate evidence of
    facilities-based mass market competition and we are unable to
    conclude from the evidence in the record that Qwest no longer holds
    a significant market share of the services at issue.[^115] Thus we
    deny Qwest's request for forbearance.

32. For the same reasons, we find that Qwest has not demonstrated that
    enforcement of the Commission's dominant carrier regulations as they
    apply to Qwest's interstate switched access services is unnecessary
    for the protection of consumers.[^116] Nor has Qwest demonstrated
    that forbearance from the application of these regulations to these
    services is consistent with the public interest.[^117] Accordingly,
    Qwest's request for forbearance from such regulations is
    denied.[^118]

##### Enterprise Switched Access 

33. There is insufficient information in the record to reasonably assess
    market shares for enterprise switched access services, and the
    record evidence suggests Qwest faces more limited facilities-based
    competition in these MSAs.[^119] The record does not include
    sufficient data for Qwest's service territory in the MSAs to
    demonstrate sufficient competition to satisfy the section 10(a)
    criteria for enterprise switched access services,[^120] nor does it
    include any other basis for such relief. Consistent with our
    precedent, we therefore deny this aspect of the Petitions.[^121]

### Forbearance Analysis for Section 251(c)(3) Unbundling Obligations 

34.  This proceeding represents the fifth time an incumbent LEC has
    sought forbearance from section 251(c)(3) UNE obligations based on
    claims of robust facilities-based competition. In the *Triennial
    Review Remand Order*, the Commission tailored its unbundling rules
    to account for the presence of competition by establishing
    "triggers" designed to eliminate high-capacity loop and transport
    unbundling obligations with respect to wire centers with significant
    demand, such as in central business districts,[^122] and by
    declining to order unbundling of network elements to provide service
    in the mobile wireless services market and long distance services
    market, due to the evolution of retail competition that has not
    relied upon UNE access.[^123] The Commission did not believe it was
    appropriate at that time to render similar judgments for local
    exchange service and exchange access service. Nevertheless, the
    Commission announced that it might one day be appropriate to
    conclude, based upon sufficient facilities‑based competition,
    particularly from cable companies, that the state of local exchange
    competition would justify forbearance from UNE obligations.[^124]
    The Commission now has granted such relief in the *Qwest Omaha
    Forbearance Order*, the *ACS UNE Forbearance Order* and the *Qwest
    Terry Forbearance Order*[^125] based on evidence that, among other
    things, the incumbent LEC had lost significant market share to
    facilities-based competitors that had substantial deployment of
    last-mile facilities capable of providing competing services in the
    wire center service areas where forbearance was granted.

35.  We continue to follow the approach that the Commission adopted in
    the *Qwest Omaha Forbearance Order* and subsequent decisions for
    determining whether forbearance from unbundling obligations is
    warranted under the section 10 criteria.[^126] By carefully applying
    this precedent, we determine that forbearance from the application
    to Qwest of the section 251(c)(3) obligations to provide unbundled
    access to loops, subloops, and transport to competitors in the four
    MSAs does not meet the standards set forth in section 10(a).
    Specifically, the record evidence in this proceeding demonstrates
    that Qwest is not subject to a sufficient level of facilities-based
    competition in the four MSAs to grant relief under the Commission's
    precedent. We therefore deny the Qwest Petitions with respect to the
    request for forbearance from UNE obligations. While the current
    evidence of facilities-based competition in these MSAs is
    insufficient to justify forbearance, we note that the evidence does
    show that cable operators have deployed facilities that meet the 75
    percent coverage threshold in some wire centers.[^127] Thus, future
    relief from unbundling obligations might be warranted in such wire
    centers upon a showing of a more competitive environment in these
    MSAs.

36. *Section 10(a)(1) -- Charges, Practices, Classifications, and
    Regulation*. We begin our analysis by examining competition in the
    retail and wholesale markets in the relevant MSAs.[^128] As we held
    above, with respect to retail competition for mass market
    customers,[^129] we are unable to find that Qwest's MSA-wide mass
    market market shares, even including competition from section
    251(c)(4) resale and Qwest's QPP/QLSP service,[^130] and taken in
    conjunction with other factors, are sufficient to warrant
    forbearance from dominant carrier regulation.[^131] Consistent with
    our precedent, we likewise are not persuaded that these data, in
    themselves, support the grant of forbearance from UNE
    obligations.[^132] Moreover, the record evidence indicates that
    competition from cable operators in the four MSAs currently does
    not, without more, provide a sufficient basis for relief.[^133] Nor
    does the record reveal that other competitors in these MSAs have
    deployed their own extensive last-mile facilities for use in serving
    the enterprise market.[^134] Although Qwest and others submitted
    data regarding competitive LEC lit buildings, the facilities
    "coverage" suggested by those data do not approach the 75 percent
    threshold relied upon by the Commission in the past.[^135] Indeed,
    there is record evidence that some of the competition from
    competitive LECs for enterprise services in these MSAs instead
    depends on access to Qwest's own facilities, including UNEs.[^136]
    Lacking significant evidence of the type of last-mile
    facilities-based competition the Commission relied on in the *Qwest
    Omaha* and *ACS UNE* forbearance proceedings to grant relief, we
    find that the criteria of section 10(a) are not satisfied with
    respect to Qwest's request for forbearance from UNE obligations in
    these MSAs.

37.  We also examine the role of the wholesale market. The record does
    not reflect any significant alternative sources of wholesale inputs
    for carriers in the four MSAs.[^137] Although Qwest cites a
    significant amount of retail enterprise competition relying upon
    Qwest's special access services and UNEs,[^138] we found above that
    the levels of facilities-based competition do not justify
    forbearance and the evidence of additional competition that relies
    on Qwest's wholesale services is insufficient to warrant
    forbearance. We note that Qwest has received relief, or has pending
    claims of entitlement to relief, from unbundling obligations in wire
    centers in all four MSAs, based on the competitive triggers
    established in the *Triennial Review Remand Order*.[^139]

38.  The other evidence that Qwest has submitted does not overcome the
    findings above regarding the levels of facilities-based competition.
    First, we reject Qwest's attempt to demonstrate the MSAs are
    competitive by calculating percentage reductions in retail
    lines.[^140] As the Commission has explained, the abandonment of a
    residential access line does not necessarily indicate capture of
    that customer by a competitor, but, for example, may indicate that
    the consumer converted a second line used for dial-up Internet
    access to an incumbent LEC broadband line for Internet access.[^141]
    The record in this proceeding also indicates that there are other
    possible reasons for such decrease.[^142]

39. Further, we acknowledge that Qwest has submitted assorted
    competitive fiber network data, including fiber network maps; the
    number of route miles on these networks; the percentage of wire
    centers in an MSA that a competing fiber provider can reach; or the
    materials from competitors' web-sites describing their service
    offerings and territories.[^143] We are not persuaded that they
    overcome the shortage in facilities-based competition shown above.
    For example, the fiber maps submitted by Qwest do not contain
    sufficient detail upon which the Commission could base a forbearance
    determination, and the Commission previously has found that such
    maps provide only limited evidence of market-wide deployment.[^144]
    Similarly, just as the *Triennial Review Remand Order* found the
    number of route miles, lists of fiber wholesalers, and counts of
    competitive networks to be unreliable and unsuitable as triggers for
    the Commission's unbundling rules,[^145] we also find that such data
    have limits for identifying where any unbundling relief would be
    warranted or where a competitive carrier might serve a substantial
    number of buildings within a wire center.

40.  Finally, we address record evidence of the number of lit
    buildings.[^146] Qwest does not provide any comparative data for the
    number of buildings with demand for high-capacity services that
    Qwest serves, and the percentage of all commercial buildings that
    competitors serve with their own fiber facilities is extremely small
    on a relative basis **--** 0.17 percent to 0.26 percent.[^147] Also,
    in those MSAs where relief has already been partially granted by
    virtue of the impairment triggers, Qwest's submission counts all lit
    buildings indistinguishably. Although the accuracy and reliability
    of these data are challenged on our record,[^148] we do not reach
    the question of whether we could forbear based on these data.

41. In support of its request for UNE relief, Qwest also argues that
    competitors are competing extensively using special access rather
    than UNEs when providing service over Qwest's facilities.[^149]
    While Qwest can demonstrate a fair amount of retail enterprise
    competition using Qwest's special access services and UNEs,
    consistent with the Commission's precedent, competition that relies
    on Qwest's own facilities is not a sufficient basis to grant
    forbearance from UNE requirements.[^150]

42.  *Section 10(a)(2) -- Protection of Consumers*. The second prong of
    section 10(a) states that the Commission shall forbear if
    "enforcement of such regulation or provision is not necessary for
    the protection of consumers."[^151] For reasons similar to those set
    forth in the previous section, we conclude that UNEs are still
    necessary for the protection of consumers in these MSAs. There is
    insufficient evidence of competition from other last-mile
    facilities-based providers for us to determine that consumers will
    be protected if we forbear from Qwest's unbundling obligations.

43. *Section 10(a)(3) -- Public Interest*. We also find that relieving
    Qwest from the section 251(c)(3) access obligations for loop,
    certain subloop, and transport elements is not in the public
    interest under section 10(a)(3).[^152] Having found above that UNEs
    remain necessary for the protection of consumers and to ensure just
    and reasonable and not unjustly and unreasonably discriminatory,
    prices, terms and conditions in these MSAs, we conclude that
    forbearing from UNE obligations is not in the public interest.[^153]

### Forbearance Analysis for *Computer III* Requirements 

44. We deny Qwest's request for forbearance from *Computer III*
    requirements.[^154] We cannot find on the record before us that the
    application of the *Computer III* requirements is unnecessary within
    the meaning of section 10(a) of the Act.[^155] Although Qwest
    asserts that forbearance from the *Computer III* requirements is
    justified, there is no evidence in the record demonstrating why, on
    balance, the *Computer III* requirements are not necessary to ensure
    that the "charges, practices, classifications, or regulations . . .
    for\[\] or in connection with \[Qwest's local exchange and exchange
    access services\] are just and reasonable and are not unjustly or
    unreasonably discriminatory" and necessary for the protection of
    consumers.[^156] As we explained in the *Verizon 6 MSA Forbearance
    Order*, the Commission adopted the *Computer II* structural
    safeguards and the *Computer III* non-structural safeguards in order
    to prevent the BOCs from using "exclusionary market power" arising
    from their control over ubiquitous local telephone networks to
    impede competition in the enhanced services market.[^157] The record
    here does not demonstrate that Qwest no longer possesses
    exclusionary market power, and thus as in the *Qwest* *Section 272
    Sunset Order*, we must assume that Qwest still possesses such market
    power.[^158] Qwest's exercise of exclusionary market power could
    both lead to "charges, practices, classifications, or
    regulations . . . for\[\] or in connection with" Qwest's
    interexchange services that are unjust, unreasonable, or "unjustly
    or unreasonably discriminatory" and could harm consumers. Such
    results would be contrary to the public interest. We thus are unable
    to find on this record that forbearance from the *Computer III*
    requirements satisfy any of the criteria of section 10(a).

# EFFECTIVE DATE 

45. Consistent with section 10 of the Act and our rules, the
    Commission's forbearance decision shall be effective on Friday, July
    25, 2008.[^159] The time for appeal shall run from the release date
    of this order.

# ORDERING CLAUSES

46. Accordingly, IT IS ORDERED, pursuant to section 10(c) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 160(c), that the
    Qwest Corporation's Petitions for Forbearance in the Denver,
    Minneapolis-St. Paul, Phoenix, and Seattle MSAs, filed April 27,
    2007, ARE DENIED as set forth herein.

47. IT IS FURTHER ORDERED that, for the reasons set forth above, Qwest's
    Motion to Object to the Disclosure of Qwest's Confidential
    Information to the Chief Executive Officer of Integra Telecom, filed
    on June 19, 2007, IS DISMISSED.

48. IT IS FURTHER ORDERED that, for the reasons set forth above, Qwest's
    Petition to Modify Protective Order, filed on June 29, 2007, IS
    DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary

**APPENDIX A**

**Comments/Oppositions to the Qwest 4 MSA Petitions for Forbearance**

**in WC Docket No. 07-97**

  ------------------------------------------- --------------------------------
  **[Commenter/Opponent]{.underline}**        **[Abbreviation]{.underline}**

  Ad Hoc Telecommunications Users Committee   AdHoc

  Affinity Telecom, Inc. *et al.*             CLEC Group

  Ann P. Bowling                              Ann P. Bowling

  Arizona Corporation Commission              Arizona Commission

  BT Americas Inc.                            BT Americas

  Colorado Office of Consumer Counsel         Colorado Office of Consumer
                                              Counsel

  Colorado Public Utilities Commission        Colorado Commission

  Comcast Corporation                         Comcast

  COMPTEL                                     COMPTEL

  Covad Communications Group, NuVox           Covad
  Communications, XO Communications, LLC      

  Cox Communications, Inc.                    Cox

  EarthLink Inc. and New Edge Network, Inc.   EarthLink

  Independent Business Association            IBA

  National Association of State Utility       NASUCA
  Consumer Advocates                          

  New Jersey Division of Rate Counsel         New Jersey Rate Counsel

  The Public Counsel Section of the           Washington Public Counsel
  Washington State Attorney General's Office  
  and the Washington Electronic Business and  
  Telecommunications Coalition                

  The Voice on the Net Coalition              VON Coalition

  Time Warner Telecom Inc., Cbeyond Inc., and Time Warner Telecom
  Eschelon Telecom, Inc.                      

  Washington Utilities and Transportation     Washington Commission
  Commission                                  
  ------------------------------------------- --------------------------------

#  {#section .unnumbered}

**Replies to the Qwest 4 MSA Petitions for Forbearance**

**in WC Docket No. 07-97**

  ------------------------------------------- --------------------------------
  **[Replies]{.underline}**                   **[Abbreviation]{.underline}**

  Affinity Telecom, Inc. *et al.*             CLEC Group

  Arizona Corporation Commission              Arizona Commission

  Colorado Office of Consumer Counsel         Colorado Office of Consumer
                                              Counsel

  Covad Communications Group, NuVox           Covad
  Communications, XO Communications, LLC      

  EarthLink Inc. and New Edge Network, Inc.   EarthLink

  Independent Business Association            IBA

  National Association of State Utility       NASUCA
  Consumer Advocates                          

  New Jersey Division of Rate Counsel         New Jersey Rate Counsel

  Qwest Corporation                           Qwest

  Sprint Nextel Corporation                   Sprint Nextel

  T-Mobile USA, Inc.                          T-Mobile
  ------------------------------------------- --------------------------------

**APPENDIX B**

**Residential Market Share**

We estimate Qwest's residential market share for each MSA by employing a
two step procedure.[^160]

[Step 1]{.underline}. We estimate the total number of households that
have telephone service (whether wireline or mobile wireless) and the
number of households that exclusively subscribe to mobile wireless
service (*i.e*. households that are wireless only).[^161] We further
assume that the typical wireline household has one wireline phone.[^162]

(Qwest + CLEC) = (1-WOH) \* C~telephone~

Where,

WOH = The percentage of wireless-only households expressed in decimal
notation.

C~telephone~ = The total number of households with telephone service
(whether wireline or mobile wireless).

Qwest = Qwest residential local service lines[^163] + Qwest residential
fixed VoIP subscriber counts[^164]

CLEC = Qwest residential resold lines + Qwest residential platform
service lines (QPP+ QLSP lines)[^165] + facilities-based residential
access lines[^166]

Rearranging the expression yields,

C~telephone~ = (Qwest + CLEC)/(1-WOH).

We estimate, Wireless~CTC~, the total number of mobile wireless-only
households, by

Wireless~CTC~ = C~telephone~ - Qwest - CLEC.

[Step 2]{.underline}. We estimate Qwest's market share as follows:

MS~Qwest~ = \[Qwest + Qwest-wireless~CTC~ \] / \[Qwest + CLEC +
Wireless~CTC~ \]

Where,

Qwest-Wireless~CTC~ = Wireless-only households subscribing to Qwest
wireless service.[^167]

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: Petitions of Qwest for Forbearance Pursuant to 47 U.S.C. § 160(c)
in the Denver, Minneapolis-St. Paul, Phoenix, and Seattle Metropolitan
Statistical Areas*, WC Docket No. 07-97

The Commission adopted an Order denying forbearance petitions by Qwest
for relief from network sharing and other obligations in four
Metropolitan Statistical Areas (MSAs). Qwest requested relief similar to
the relief the Commission granted the company in Omaha. Although
significant competition exists in Qwest's markets, particularly in
Phoenix, the Commission determined based on the specific market facts
provided to us that Qwest's petitions did not provide sufficient
evidence to conclude that regulatory relief like that afforded the
company in Omaha was warranted. As competition in these markets
continues to develop, I am happy to reevaluate these markets based on
updated market facts.

**CONCURRING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

 

Re:       *Petitions of Qwest Corporation for Forbearance Pursuant to 47
U.S.C. § 160(c) in Denver, Minneapolis-St. Paul, Phoenix, and Seattle
Metropolitan Statistical Areas,* WC Docket No. 07-97

 

I support today's Order which denies petitioner forbearance relief from
dominant carrier regulation and from its UNE and Computer III
obligations.  In doing so the Commission continues to advance the notion
that its decisions in *Qwest-Omaha*, *ACS-Anchorage*, and *Qwest-Terry,
Montana* were based on some truly unique sets of circumstances.  In
contrast, the Commission's denial of the *Verizon 6 MSA Forbearance
Petitions* and today's denial of Qwest's petition for regulatory relief
in Denver, Minneapolis-St. Paul, Seattle and Phoenix should hopefully
send a signal to those considering similar requests that the Commission
is cautious, even skeptical, of granting this kind of hurried and
ill-considered relief. I support the denial of these petitions because
to do otherwise would result in less competition and higher prices -- to
the clear detriment of consumers in the aforementioned metropolitan
areas.  As I have previously done in these types of cases, however, I
limit myself to concurrence in this decision because the Commission
herein relies too heavily on the intermodal efforts of a single
alternative provider to decide whether we should forbear from the
incumbent's retail and wholesale obligations.  That is not the level of
competition envisioned by our governing statute.

 

I continue to believe that the Telecom Act envisioned more than just a
cable-telephone duopoly as sufficient competition in the marketplace.
For example, as the Commission looks to establish policies that promote
broadband the lack of competitive alternatives in this market are a
severe drag on these efforts. As a recent study by the Pew Internet and
American Life Project points out, 35% of dial-up users would switch to
broadband if it were more affordable. More competition would certainly
put downward pressure on broadband prices and yet the current
cable-telephone form of competition has been insufficient to reach those
with the least disposable income.  Accordingly, I have always been
extremely leery of the test established in *Qwest-Omaha* and its progeny
that rely so heavily on cable-telephone competition to determine whether
there is sufficient competition in the marketplace. I would have been
more comfortable with an analysis less accepting of duopoly as a
competitive marketplace and that did not lead us further down this road.

 

There was much debate in the record as to the role that "cut-the-cord"
customers (those who use a wireless phone service in place of a wireline
phone service) should play in the Commission's market share analysis.
This is certainly an important question to be answered, particularly as
the number of cut-the-cord customers grows. The Order concludes -- too
quickly in my view  -- that these customers should be included in the
market share analysis. Important questions about what is the appropriate
market, does wireless substitution act to constrain pricing, how do you
account for the fact that wireless service is generally not a substitute
in the business market, and what type of survey data is appropriate to
be used are all questions that were not sufficiently considered.  The
Order's conclusion that cut-the-cord customers should be included in the
market analysis may or may not withstand such a rigorous analysis but it
is important to conduct such an analysis if we are going to grant such
widespread relief on this basis in the future.

 

It is also important to note that the public service commissions in
Colorado, Washington, Arizona, and Minnesota, as well as NASUCA and
numerous consumer and public interest organizations strongly opposed
these petitions.  These commissions and organizations have a front row
seat as to the level of competition that exists in the relevant cities
today and the consumer harm that forbearance would cause. Certainly
their strong concern is evidence that Qwest has not met the forbearance
standard set forth in section 10 -- permitting forbearance only where,
among other things, current regulations are no longer needed to protect
consumers and to serve the public interest. 

Finally, while the final outcome in this case is a good one, I continue
to be less than enthused about the forbearance process generally. Recent
Congressional hearings suggest that some help may be on the way. 
Nevertheless, I continue to hope that the Commission begins to tack on
our own towards industry-wide rulemakings, where appropriate, rather
than continue with the piecemeal, time consuming, and resource heavy
forbearance process. At a bare minimum, the Commission should complete
its NPRM on forbearance procedures as expeditiously as possible.

 

For the foregoing reasons, I concur in today's decision.

**CONCURRING** **STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

** **

Re:     *Petitions of Qwest Corporation for Forbearance Pursuant to 47
U.S.C. § 160(c) in the Denver, Minneapolis-St. Paul, Phoenix, and
Seattle Metropolitan Statistical Areas;* WC Docket No. 07-97

 

In today's decision, the Commission denies a yet another petition
seeking broad exemption from the retail and wholesale obligations of Act
and the Commission's rules. I agree with the Order\'s finding that the
petitioner has not met its burden of showing that sufficient competitive
conditions exist to justify the relief requested, a decision buttressed
by the filings of numerous state commissions and consumer advocates with
close vantage to the particular markets in question.

I concur in this decision because I continue to believe that the
Commission could improve its analysis of local competitive conditions
and the impact of forbearance on consumers. Petitions such as this would
have a profound impact on the telecommunications and broadband options
available to millions of business and residential customers. Given these
implications, the Commission should base its decisions on careful and
sound examination of specific geographic and product markets. I do agree
with the Order's findings that the record here does not permit the
Commission to determine with any degree of confidence that competition
from mobile wireless providers would satisfy the statutory criteria for
forbearance. The Commission grapples seriously with this question for
the first time in this Order, but it is clear that there are many
questions raised and more work to be done to determine the appropriate
framework for weighing the impact of mobile wireless services, and
wireless substitution in particular, in our competitive analysis.

As I've stated before, I also continue to be concerned about the
Commission's balancing of the pro-competitive and deregulatory goals of
the Act. Section 10 requires the Commission to consider, among other
things, competitive conditions, the protection of consumers, and the
public interest. It is apparent that the Act contemplates a competitive
environment based on more than a simple rivalry -- or duopoly -- of a
wireline and cable provider. The Commission must be ready to respond to
a dynamic marketplace but it must also beware of the potential to lock
consumers into a choice between two providers, a result that would have
been more likely had relief been granted here and one that would fall
short of the vital goals of the 1996 Act.

Finally, I must observe that the forbearance process continues to
consume a tremendous amount of resources of the Commission, our state
commission colleagues, and market participants. Moreover, the emerging
cycle of filing and re-filing petitions for forbearance does little to
promote regulatory stability in the market. I note that numerous Members
of Congress have expressed concern about the forbearance process and,
particularly, the "deemed grant" provision of section 10, which puts at
peril the very standard for forbearance articulated by Congress.
Although the decision about whether to modify the statute rests with
Congress alone, I again encourage the Commission to do all it can by
moving forward with our pending proceeding concerning the need for
procedural rules to govern the forbearance process.

[^1]: Petition of Qwest Corporation for Forbearance Pursuant to 47
    U.S.C. § 160(c) in the Denver, Colorado Metropolitan Statistical
    Area, WC Docket No. 07-97 (filed Apr. 27, 2007) (Qwest Denver
    Petition); Petition of Qwest Corporation for Forbearance Pursuant to
    47 U.S.C. § 160(c) in the Minneapolis-St. Paul, Minnesota
    Metropolitan Statistical Area, WC Docket No. 07-97 (filed Apr. 27,
    2007) (Qwest Minneapolis-St. Paul Petition); Petition of Qwest
    Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the
    Phoenix, Arizona Metropolitan Statistical Area, WC Docket No. 07-97
    (filed Apr. 27, 2007) (Qwest Phoenix Petition); Petition of Qwest
    Corporation for Forbearance Pursuant to 47 U.S.C. §160(c) in the
    Seattle, Washington Metropolitan Statistical Area, WC Docket No.
    07-97 (filed Apr. 27, 2007) (Qwest Seattle Petition) (collectively,
    Qwest Petitions). On May 3, 2007, and August 3, 2007, Qwest filed
    errata to make certain corrections to its petitions. *S**ee* Letter
    from Melissa E. Newman, Vice President -- Federal Regulatory, Qwest,
    to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 (filed May
    3, 2007) (correcting the Denver, Phoenix, and Seattle petitions);
    Letters from Melissa E. Newman, Vice President -- Federal
    Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket
    No. 07-97 (filed Aug. 3, 2007) (filing two separate letters
    correcting the Denver and Seattle petitions). *See* Appendix A for a
    list of commenters*.*

[^2]: 47 U.S.C. § 160.

[^3]: *See* Letter from Daphne E. Butler, Corporate Counsel, Qwest, to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 1 (filed
    June 13, 2008) (Qwest June 13, 2008 *Ex Parte* Letter) (clarifying
    the geographic scope of Qwest's petitions). For convenience, we
    refer to the 4 geographic markets for which Qwest seeks forbearance
    in this proceeding as "MSAs," even though the areas Qwest identifies
    is in each case more limited than an MSA. *See* *infra* para. 15.

[^4]: 47 C.F.R. § 51.319(a), (b), (e).

[^5]: 47 C.F.R. §§ 61.32, 61.33, 61.38, 61.58, 61.59.

[^6]: 47 C.F.R. §§ 61.41-49.

[^7]: 47 C.F.R. §§ 63.03, 63.04. In its petitions, Qwest requested
    forbearance from Sections 63.60-66 of the Commission's rules, but
    subsequently withdrew this aspect of its petitions; therefore, we do
    not include those rule sections in our analysis below. *See* Qwest
    June 13, 2008 *Ex Parte* Letter at 4.

[^8]: Qwest Denver Petition at 3; Qwest Minneapolis-St. Paul Petition at
    3; Qwest Phoenix Petition at 3; Qwest Seattle Petition at 3. As
    described more fully below, Qwest subsequently limited the scope of
    *Computer III* relief it is seeking. *See infra* note Error:
    Reference source not found; Qwest June 13, 2008 *Ex Parte* Letter at
    5.

[^9]: *See* 47 C.F.R. §§ 61.32, 61.33, 61.38, 61.41-49, 61.58, 61.59,
    63.03, 63.04.

[^10]: 47 U.S.C. § 251(c)(3).

[^11]: 47 U.S.C. § 271(c)(2)(B)(ii). Section 271(c)(2)(B) sets forth a
    14-point "competitive checklist" of access, interconnection, and
    other threshold requirements that a BOC must demonstrate that it
    satisfies before that BOC can be authorized to provide in-region,
    interLATA services. *See* 47 U.S.C. § 271(c)(2)(B). After a BOC
    obtains section 271 authority to offer in-region interLATA services,
    these threshold requirements become ongoing requirements. *See* 47
    U.S.C. § 271(d)(6); *see also Petition of Qwest Corporation for
    Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan
    Statistical Area*, WC Docket No. 04-223, Memorandum Opinion and
    Order*,* 20 FCC Rcd 19415, 19419, 19462-63, paras. 7, 94-96 (2005)
    (*Qwest Omaha Forbearance Order*), *aff'd*, *Qwest Corp. v. FCC*,
    482 F.3d 471 (D.C. Cir. 2007) (*Qwest Corp. v. FCC*).

[^12]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19417-22, paras.
    3-11.

[^13]: *Amendment of Section 64.702 of the Commission's Rules and
    Regulations*, CC Docket No. 85-229, Phase I, 104 FCC 2d 958 (1986)
    (*Computer III Phase I Order*), *recon*., 2 FCC Rcd 3035 (1987)
    (*Computer III Phase I Reconsideration Order*), *further recon.*, 3
    FCC Rcd 1135 (1988) (*Computer III Phase I Further Reconsideration
    Order*), *second further recon.*, 4 FCC Rcd 5927 (1989) (*Computer
    III Phase I Second Further Reconsideration Order*); *Phase I Order
    and Phase I Recon. Order vacated sub nom. California v. FCC*, 905
    F.2d 1217 (9th Cir. 1990) (*California I*); CC Docket No. 85-229,
    Phase II, 2 FCC Rcd 3072 (1987) (*Computer III Phase II Order*),
    *recon*., 3 FCC Rcd 1150 (1988) (*Computer III Phase II
    Reconsideration Order*), *further recon.*, 4 FCC Rcd 5927 (1989)
    (*Phase II Further Reconsideration Order*); *Phase II Order
    vacated*, *California I*, 905 F.2d 1217 (9th Cir. 1990); *Computer
    III Remand Proceeding*, CC Docket No. 90-368, 5 FCC Rcd 7719 (1990)
    (*ONA Remand Order*), *recon.*, 7 FCC Rcd 909 (1992), *pets. for
    review denied sub nom. California v. FCC*, 4 F.3d 1505 (9th Cir.
    1993) (*California II*); *Computer III Remand Proceedings: Bell
    Operating Company Safeguards and Tier 1 Local Exchange Company
    Safeguards*, CC Docket No. 90-623, 6 FCC Rcd 7571 (1991) (*BOC
    Safeguards Order*), *BOC Safeguards Order vacated in part and
    remanded sub nom. California v. FCC*, 39 F.3d 919 (9th Cir. 1994)
    (*California III*), *cert. denied*, 514 U.S. 1050 (1995); *Computer
    III Further Remand Proceedings: Bell Operating Company Provision of
    Enhanced Services*, CC Docket No. 95-20, Notice of Proposed
    Rulemaking, 10 FCC Rcd 8360 (1995) (*Computer III Further Remand
    Notice*), Further Notice of Proposed Rulemaking, 13 FCC Rcd 6040
    (1998) (*Computer III Further Remand Further Notice*); Report and
    Order, 14 FCC Rcd 4289 (1999) (*Computer III Further Remand Order*),
    *recon*., 14 FCC Rcd 21628 (1999) (*Computer III Further Remand
    Reconsideration Order*); *see also Further Comment Requested to
    Update and Refresh Record on Computer III Requirements*, CC Docket
    Nos. 95-20, 98-10, Public Notice, 16 FCC Rcd 5363 (2001) (asking
    whether, under the ONA framework, information service providers can
    obtain the telecommunications inputs, including digital subscriber
    line (DSL) service, they require) (collectively referred to as
    *Computer III*).

[^14]: *See Computer III Phase I Order*, 104 FCC 2d at 964, para. 4. An
    ONA plan includes a description of how a BOC unbundles its network
    to enable its competitors to provide enhanced services generally.
    *Id.* at 1019-20, para. 113, 1064-67, paras. 214-19. A CEI plan
    includes a description of how a BOC unbundles its network to enable
    its competitors to provide a particular enhanced service or set of
    enhanced services that the BOC intends to provide. *Id*. at 1055-56,
    paras. 190-91.

[^15]: *Petition of Verizon* *Telephone Companies for Forbearance
    Pursuant to 47 U.S.C. § 160(c) in the Boston, New York,
    Philadelphia, Pittsburgh, Providence and Virginia Beach Metropolitan
    Statistical Areas, Inc.*, WC Docket No. 06-172, Memorandum Opinion
    and Order, 22 FCC Rcd 21293, 21295-96, paras. 3-5 (2007) (*Verizon 6
    MSA Forbearance Order*), *pet. for review pending*, No. 08-1012
    (D.C. Cir. filed Jan. 14, 2008).

[^16]: *Qwest Omaha Forbearance Order,* 20 FCC Rcd at 19417, para. 2.

[^17]: *See id.* at 19424, para. 15.

[^18]: *Id.* at 19426, para. 19.

[^19]: *Id.* at 19440, para. 53 (concluding that section 251(c) is
    "fully implemented" because the Commission has issued rules
    implementing section 251(c) and those rules have gone into effect).

[^20]: *See id. at* 19447, para. 64; *see also* 47 U.S.C. §§ 251(c)(4)
    (resale obligation), 271(c)(2)(B) (competitive checklist).

[^21]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19444, para. 59;
    *see also Wireline Competition Bureau Discloses Cable Coverage
    Threshold in Memorandum Opinion and Order Granting Qwest Corporation
    Forbearance Relief in the Omaha Metropolitan Statistical Area*, WC
    Docket 04-223, Public Notice, 22 FCC Rcd 13561 (2007) (disclosing,
    after receiving Cox's consent to disclose the coverage threshold in
    the *Qwest Omaha Forbearance Order*, that Qwest was granted
    unbundling relief in those wire center service areas where, among
    other things, Cox's voice-enabled cable plant covered more than 75%
    of the end-user locations that were accessible from those wire
    centers).

[^22]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19450, para. 69
    n.186 (stating that "Cox does not itself rely on Qwest's UNEs to
    compete").

[^23]: *Id.* at 19452-53, paras. 73-74.

[^24]: *Id.* at 19444-45, para. 60.

[^25]: *Id.* at 19460, para. 90; *see also* 47 U.S.C. § 153(4) (defining
    "Bell operating company").

[^26]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19465, para. 100;
    47 U.S.C. § 271(c)(2)(B)(iv)-(vi).

[^27]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19446-47,
    19449-50, 19452, 19455, paras. 62, 64, 67-68, 71, 80.

[^28]: Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the
    Communications Act of 1934, as Amended, for Forbearance from
    Sections 251(c)(3) and 252(d)(1) in the Anchorage Study Area, WC
    Docket No. 05-281 (filed Sept. 30, 2005).

[^29]: *Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the
    Communications Act of 1934, as Amended, for Forbearance from
    Sections 251(c)(3) and 252(d)(1) in the Anchorage Study Area*, WC
    Docket No. 05-281, Memorandum Opinion and Order, 22 FCC Rcd 1958,
    1959-60, paras. 1-2 (2007) (*ACS UNE Forbearance Order*), *appeals
    dismissed*, *Covad Commc'n Group, Inc. v. FCC*, Nos. 07-70898,
    07-71076, 07-71222 (9th Cir. 2007) (dismissing appeals for lack of
    standing); *see also Wireline Competition Bureau Discloses Cable
    Coverage Threshold in Memorandum Opinion and Order Granting ACS of
    Anchorage, Inc. Forbearance Relief in the Anchorage, Alaska Study
    Area*, WC Docket No. 05-281, Public Notice, 22 FCC Rcd 11962 (2007)
    (disclosing, after receiving General Communication, Inc.'s (GCI)
    consent to disclose the coverage threshold in the *ACS UNE
    Forbearance Order*, that ACS was granted unbundling relief in those
    wire center service areas where, among other things, GCI's
    voice-enabled cable plant covered more than 75% of the end-user
    locations that were accessible from those wire centers).

[^30]: *ACS UNE Forbearance Order*, 22 FCC Rcd at 1960, para. 2.

[^31]: Letter from Karen Brinkmann, Counsel to ACS of Anchorage, Inc.,
    to Marlene H. Dortch, Secretary, FCC, WC Docket No. 06-109 at 2
    (filed May 24, 2007); *see also* Letter from Karen Brinkmann *et
    al.*, Counsel to ACS of Anchorage, Inc., to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 06-109 at 2 (filed June 29, 2007).

[^32]: *Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the
    Communications Act of 1934, as Amended (47 U.S.C. § 160(c)), for
    Forbearance from Certain Dominant Carrier Regulation of Its
    Interstate Access Services, and for Forbearance from Title II
    Regulation of Its Broadband Services, in the Anchorage, Alaska,
    Incumbent Local Exchange Carrier Study Area*, WC Docket No. 06-109,
    Memorandum Opinion and Order, 22 FCC Rcd 16304, 16305-06, para. 1
    (2007) (*ACS Dominance Forbearance Order*), *pets. for recon.
    pending*.

[^33]: The *ACS Dominance Forbearance Order* also addressed ACS's other
    requests for forbearance, including forbearance from dominant
    carrier regulation of enterprise switched access services, broadband
    Internet access services, and special access services, and
    forbearance from Title II and *Computer Inquiries* requirements for
    ACS's enterprise broadband services. *See generally* *ACS Dominance
    Forbearance Order*, 22 FCC Rcd 16304.

[^34]: *Id*. at 16306-07, para. 3.

[^35]: *Id.* at 16307, para. 4.

[^36]: *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21294, para. 1.

[^37]: Verizon sought forbearance from the following: tariffing
    requirements, price cap regulation, and dominant carrier
    requirements concerning the processes for acquiring lines,
    discontinuing services, assignment or transfers of control, and
    acquiring affiliations. *See Verizon 6 MSA Forbearance Order*, 22
    FCC Rcd at 21294, para. 1 n.4 (citing 47 C.F.R. §§ 61.32, 61.33,
    61.38, 61.41-49, 61.58, 61.59, 63.03, 63.04, 63.60-66).

[^38]: *Id.* at 21294, para. 1 n.5 (citing 47 C.F.R. § 51.319(a), (b),
    (e)).

[^39]: *Id.* at 21294, para. 1.

[^40]: *Id.*

[^41]: *Id.* at 21307-08, para. 27 (dominant carrier analysis), 21312,
    para. 36 (UNE analysis); *see also id*. at 21318-19, para. 45
    (finding insufficient evidence to demonstrate that Verizon no longer
    possesses exclusionary market power and therefore denying
    forbearance from *Computer III* requirements). In declining to
    forbear from unbundling obligations, the Commission found evidence
    that cable operators have deployed facilities that meet the 75
    percent coverage threshold in some wire centers, and therefore
    concluded that "future relief from unbundling obligations might be
    warranted in such wire centers upon a showing of a more competitive
    environment in these MSAs." *See id*. at 21312, para. 36.

[^42]: *See* Qwest Petition for Forbearance Under 47 U.S.C. § 160(c)
    from Resale, Unbundling and Other Incumbent Local Exchange
    Requirements Contained in Sections 251 and 271 of the
    Telecommunications Act of 1996 in the Terry, Montana Exchange, WC
    Docket No. 07-9 (filed Jan. 22, 2007).

[^43]: *Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from
    Resale, Unbundling and Other Incumbent Local Exchange Requirements
    Contained in Sections 251 and 271 of the Telecommunications Act of
    1996 in the Terry, Montana Exchange*, WC Docket No. 07-9, Memorandum
    Opinion and Order, 23 FCC Rcd 7257 (2008) (*Qwest Terry Forbearance
    Order*).

[^44]: As the Commission stated in the *Qwest Terry Forbearance Order*,
    there are only a few hundred access lines in Terry, Montana and the
    nearest city is approximately 200 miles away. *See id*. at 7264,
    para. 13 n.45.

[^45]: *See Petition of Mid-Rivers Telephone Cooperative, Inc. for Order
    Declaring It to Be an Incumbent Local Exchange Carrier in Terry,
    Montana Pursuant to Section 251(h)(2)*, WC Docket No. 02-78, Report
    and Order, 21 FCC Rcd 11506, 11509, para. 8 (2006) (*Mid-Rivers
    Order*) (determining that Mid-Rivers, among other things had
    "substantially replaced" Qwest in the Terry exchange under section
    251(h)(2), and thus should be treated as an incumbent LEC for the
    purposes of section 251 in that market). In the *Mid-Rivers Order*,
    the Commission also determined that Qwest lacks market power in the
    Terry exchange and should be treated as a non-dominant carrier for
    its interstate telecommunications services in that exchange. *Id*.
    at 11519, 11521, paras. 29, 34 (permitting Qwest for purposes of
    administrative convenience to continue to operate pursuant to
    dominant carrier regulation if it elected to do so).

[^46]: *See Qwest Terry Forbearance Order*, 23 FCC Rcd at 7264-66,
    paras. 13, 17-18.

[^47]: *See id*. at 7266, para. 17.

[^48]: We deny the requests of some commenters asking the Commission to
    establish a "complete when filed'' policy and, on that basis,
    dismiss the 4 Qwest Petitions in their entirety. *See* CLEC Group
    Comments at 2 (stating that the Commission should establish a
    "complete when filed'' policy similar to that adopted in the section
    271 proceedings); Covad Comments at 15 (claiming that Qwest's
    petitions should be evaluated and judged by the Commission as they
    were presented by Qwest at the time of filing); New Jersey Rate
    Counsel Reply at 1. These commenters in effect are seeking the
    adoption of new procedural rules to govern forbearance proceedings.
    The Commission currently is examining whether to adopt new
    procedural rules for forbearance proceedings and we believe that any
    new procedural rules would better be addressed in that context.
    *Petition to Establish Procedural Requirements to Govern Proceedings
    for Forbearance Under Section 10 of the Communications Act of 1934,
    as Amended*, WC Docket No. 07-267, Notice of Proposed Rulemaking, 22
    FCC Rcd 21212 (2007). We also deny Qwest's "Petition to Modify
    Protective Order," which was filed on June 29, 2007. *See* Qwest's
    Petition to Modify Protective Order, WC Docket No. 07-97 (filed June
    29, 2007); *see also Petitions of Qwest Corporation for Forbearance
    Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St. Paul,
    Phoenix, and Seattle Metropolitan Statistical Areas*, WC Docket No.
    07-97, Order, 22 FCC Rcd 10129 (WCB 2007) (*Qwest 4 MSA First
    Protective Order*); *Petitions of Qwest Corporation for Forbearance
    Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St. Paul,
    Phoenix, and Seattle Metropolitan Statistical Areas,* WC Docket No.
    07-97, Second Protective Order, 22 FCC Rcd 10134 (WCB 2007) (*Qwest
    4 MSA Second Protective Order*). Although Qwest asks the Commission
    to allow parties to proceed under the *Qwest 4 MSA First Protective
    Order* and to revoke the *Qwest 4 MSA Second Protective Order*
    adopted in this proceeding, we see no reason to do so. A number of
    parties have relied on the *Qwest 4 MSA Second Protective Order*
    when submitting highly confidential material in this proceeding and
    we find that any changes to the *Qwest 4 MSA Second Protective
    Order* may put sensitive information at risk and would likely
    discourage parties from submitting sensitive proprietary information
    to the Commission in future proceedings. *See Verizon 6 MSA
    Forbearance Order*, 22 FCC Rcd at 21300, para. 13 n.42. We also
    dismiss Qwest's motion objecting to the disclosure of confidential
    information to Integra Telecom Inc.'s (Integra) Chief Executive
    Officer pursuant to the *Qwest 4 MSA First Protective Order*. *See*
    Qwest's "Motion to Object to the Disclosure of Qwest's Confidential
    Information to the Chief Executive Officer of Integra Telecom," WC
    Docket No. 07-97 (filed June 19, 2007); Integra Telecom, Inc.'s
    "Reply to Objection," WC Docket No. 07-97 (filed Aug. 1, 2007). If
    an appropriate motion is filed within a procedurally proper period
    of time, both protective orders in this proceeding prohibit the
    disclosure of confidential or highly confidential information to the
    person who is the subject of the objection prior to a decision by
    the Commission that would permit such disclosure. *See Qwest 4 MSA
    First Protective Order*, 22 FCC Rcd at 10130, para. 3(b); *Qwest 4
    MSA Second Protective Order*, 22 FCC Rcd at 10137, para. 10. Neither
    Qwest nor Integra has filed any additional information regarding
    this dispute since August 1, 2007, and Dudley Slater, the CEO of
    Integra, has participated in this proceeding. *See* Letter from
    Russell C. Merbeth, Assistant General Counsel for Integra Telecom,
    Inc., to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 1
    (filed June 13, 2008) (stating that the CEO of Integra participated
    in meetings with the Commissioners on June 11, 2008 and June 12,
    2008). We therefore find no reason at this stage of the proceeding
    to address the merits of Qwest's motion. *See also* Qwest's Motion
    to Object to the Disclosure of Qwest's Confidential Information to
    the Director -- Interconnection of New Edge Networks an EarthLink
    Company, WC Docket No. 07-97 (filed July 6, 2007); Qwest's
    Withdrawal of Motion to Object to the Disclosure of Qwest's
    Confidential Information to the Director -- Interconnection of New
    Edge Networks an EarthLink Company, WC Docket No. 07-97 (filed July
    18, 2007).

[^49]: 47 U.S.C. § 160(a). We note that section 10(d) provides that the
    Commission may not forbear from applying the requirements of section
    251(c) or section 271 unless it determines that those requirements
    are "fully implemented." 47 U.S.C. § 160(d). In the *Qwest Omaha
    Forbearance Order*, the Commission determined that, for purposes of
    section 10(d), the requirements of section 251(c) and 271(c) are
    fully implemented nationwide and may be forborne from. *See Qwest
    Omaha Forbearance Order*, 20 FCC Rcd at 19439-42, paras. 51-56. The
    D.C. Circuit affirmed the Commission's interpretation, *see Qwest
    Corp. v. FCC*, 482 F.3d at 477-79, and we therefore reject
    commenters' requests to revisit the Commission's interpretation of
    "fully implemented" in this proceeding. *See, e.g.*, Arizona
    Commission Comments at 17-18; COMPTEL Opposition at 10-17; Arizona
    Commission Reply at 27; Covad Reply at 24-26.

[^50]: 47 U.S.C. § 160(b) (providing that, in making the determination
    under section 10(a)(3), the Commission shall consider whether
    forbearance will promote competitive market conditions).

[^51]: *See* 47 U.S.C. § 160(a). We reject New Jersey Rate Counsel's
    argument that exercise of the Commission's forbearance authority
    pursuant to section 10 of the Act violates the Separation of Powers
    provision, the Equal Protection Clause, and the Tenth and Eleventh
    Amendments of the U.S. Constitution. *See* New Jersey Rate Counsel
    Comments at 6-7; New Jersey Rate Counsel Reply at 9. As we held in
    previous orders in response to this same argument, the New Jersey
    Rate Counsel makes no attempt to develop this argument, and we find
    the assertion insufficient to call into question the
    constitutionality of section 10. *See Petition of the Embarq Local
    Operating Companies for Forbearance Under 47 U.S.C. § 160(c) from
    Application of Computer Inquiry and Certain Title II Common-Carriage
    Requirements; Petition of the Frontier and Citizens ILECs for
    Forbearance Under Section 47 U.S.C. § 160(c) from Title II and
    Computer Inquiry Rules With Respect to Their Broadband Services,* WC
    Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478,
    19487, para. 15 n.60 (2007), *pet. for review pending*, No. 07-1452
    (D.C. Cir. filed Nov. 5, 2007); *Petition of Qwest Communications
    International Inc. for Forbearance from Enforcement of the
    Commission's Dominant Carrier Rules as They Apply After Section 272
    Sunsets*, WC Docket No. 05-333, Memorandum Opinion and Order, 22 FCC
    Rcd 5207, 5232, para. 49 n.139 (2007) (*Qwest Section 272 Sunset
    Forbearance Order*). We also disagree with, and find a similar lack
    of support for New Jersey Rate Counsel's argument that section 10
    proceedings may only lawfully be decided in a formal adjudication or
    hearing. New Jersey Rate Counsel Reply at 4-5.

[^52]: *See Cellular Telecomms. & Internet Ass'n v. FCC*, 330 F.3d 502,
    509 (D.C. Cir. 2003) (explaining that the three prongs of section
    10(a) are conjunctive and that the Commission could properly deny a
    petition for failure to meet any one prong). As the Commission
    previously has held, it would be appropriate to deny a petition for
    forbearance even if only one of the three prongs of section 10(a) is
    not satisfied. *Petition of Core Communications, Inc. for
    Forbearance from Sections 251(g) and 254(g) of the Communications
    Act and Implementing Rules*, WC Docket No. 06-100, Memorandum
    Opinion and Order, 22 FCC Rcd 14118, 14125, para. 12 (2007), *pet.
    for review pending*, No. 07-1381 (D.C. Cir. filed Sept. 20, 2007).

[^53]: The Commission's forbearance analysis is a fact-based inquiry
    that relies on factors unique to the markets under consideration.
    *See* *ACS UNE Forbearance Order*, 22 FCC Rcd at 1963, para 9, n.28;
    *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19417, para. 2, n.4 &
    19423, para. 14, n.46*; see also* Letter from J.G. Harrington,
    Counsel to Cox Communications, Inc., to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 07-97, Attach. at 1 (filed June 11,
    2008) (Cox June 11, 2008 *Ex Parte* Letter) (arguing that the
    Commission should continue to require that petitioners show how
    market conditions justify forbearance for each rule). The decision
    we reach today is based on the present record and our precedent.

[^54]: Several parties argue that the market for small business services
    is sufficiently different from the market for residential services
    and that the Commission should analyze them differently. In the
    *Qwest Omaha Forbearance Order* and the *ACS Dominance Forbearance
    Order*, however, the Commission divided its analysis of switched
    access services into the mass market (residential consumers and
    small business customers) and the enterprise market (medium-sized
    and large business customers). *See* Arizona Commission Comments at
    2, 12-13; CLEC Group Reply at 8; *Qwest Omaha Forbearance Order*, 20
    FCC Rcd at 19427, para. 22; *ACS Dominance Forbearance Order*, 22
    FCC Rcd at 16318, para. 27. We see no reason to depart from our
    forbearance precedent based on the record in this proceeding, and we
    thus will use the same product categories in our dominant carrier
    forbearance analysis as in those prior decisions. Furthermore, some
    parties claim that cable providers do not offer a stand-alone local
    service product and instead offer only bundled products. According
    to these parties, because cable companies do not offer services in
    all product markets, Qwest's Petitions do not meet the criteria for
    granting forbearance. *See* Colorado Office of Consumer Counsel
    Comments at 24; Covad Reply at 16; New Jersey Rate Counsel Reply at
    12. Contrary to these claims, Cox, for example, in Arizona does
    offer stand-alone local services. *See, e.g.*,
    <http://www.cox.com/arizona/phone.asp> (visited July 21, 2008).
    Moreover, our dominant carrier forbearance analysis is merely
    informed by our traditional market power analysis, and given our
    inclusion of competition from cable operators in prior forbearance
    decisions, we are not persuaded to deviate from that approach here.

[^55]: *See, e.g.*, Qwest Denver Petition at 3 nn.3-5; Qwest
    Minneapolis-St. Paul Petition at 3-4 nn.3-5; Qwest Phoenix Petition
    at 3 nn.3-5; and Qwest Seattle Petition at 3-4 nn.6-8; *see also* 47
    C.F.R. §§ 61.32, 61.33, 61.38, 61.41-49, 61.58, 61.59, 63.03, 63.04.
    Qwest later clarified it seeks relief "for both mass market and
    enterprise switched access services." Qwest has not sought
    forbearance for its special access services in this proceeding.
    *See* Qwest June 13, 2008 *Ex Parte* Letter at 2; *see also* Letter
    from Melissa E. Newman, Vice President -- Federal Regulatory, Qwest,
    to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 10
    (filed June 26, 2008) (Qwest June 26, 2008 *Ex Parte* Letter)
    (stating that "Qwest is not seeking special access relief in this
    docket"). Therefore, there is no need to address commenters'
    arguments regarding whether forbearance for Qwest's special access
    services is warranted. *See, e.g.*, EarthLink Comments at 44;
    T-Mobile Reply at 3 (stating that the Qwest Seattle Petition "could
    be construed as seeking forbearance from special access
    regulations").

[^56]: The U.S. Census Bureau has divided the Seattle-Takoma-Bellevue,
    WA MSA into two Metropolitan Divisions: Seattle-Bellevue-Everett
    (King and Snohomish counties) and Tacoma (Pierce County). *See* U.S.
    Census Bureau, State and Metropolitan Area Data Book: 2006, Table
    C-1, Metropolitan Areas with Component Counties -- Population and
    Population Characteristics, *available at*
    <http://www.census.gov/prod/2006pubs/smadb/smadb-06tablec.pdf>
    (visited July 21, 2008).

[^57]: *See* Qwest June 13, 2008 *Ex Parte* Letter at 1 (clarifying the
    scope of Qwest's petitions); Letter from Daphne E. Butler, Corporate
    Counsel, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No.
    07-97, Attach. 1 (filed Apr. 22, 2008) (Qwest Denver Apr. 22, 2008
    *Ex Parte* Letter); Letter from Daphne E. Butler, Corporate Counsel,
    Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97,
    Attach. 1 (filed Apr. 22, 2008) (Qwest Minneapolis-St. Paul Apr. 22,
    2008 *Ex Parte* Letter); Letter from Daphne E. Butler, Corporate
    Counsel, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No.
    07-97, Attach. 1 (filed Apr. 22, 2008) (Qwest Phoenix Apr. 22, 2008
    *Ex Parte* Letter); Letter from Daphne E. Butler, Corporate Counsel,
    Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97,
    Attach. 1 (filed Apr. 22, 2008) (Qwest Seattle Apr. 22, 2008 *Ex
    Parte* Letter). As stated above, for convenience, we refer to the 4
    geographic markets for which Qwest seeks forbearance in this
    proceeding as "MSAs," even though the areas Qwest identifies in each
    case is more limited than an MSA. *See* U.S. Census Bureau, State
    and Metropolitan Area Data Book: 2006, Table B-1, Metropolitan Areas
    -- Area and Population, *available at*
    <http://www.census.gov/prod/2006pubs/smadb/smadb-06tableb.pdf>
    (visited July 21, 2008) (listing MSAs). We therefore generally do
    not invoke the technical meaning of "MSA" when using that term in
    this Order. The Denver, Minneapolis-St. Paul, Phoenix and the
    Seattle MSAs are among the most populous in the nation. The
    corresponding rankings are, respectively: 22nd, 16th, 14th, and
    15th. U.S. Census Bureau, State and Metropolitan Area Data Book:
    2006, Table E-13, Metropolitan Area Rankings -- Population
    Indicators (MSA Rankings), *available at*
    <http://www.census.gov/prod/2006pubs/smadb/smadb-06appe.pdf>
    (visited July 21, 2008).

[^58]: *See Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19428, para.
    24; *ACS Dominance Forbearance Order*, 22 FCC Rcd at 16320, para.
    32; *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21304, para 22.

[^59]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19445, para. 61
    n.161 (stating that "\[w\]e are under no statutory obligation to
    evaluate Qwest's Petition other than as pled"). We decline to accept
    the recommendation of the Arizona Commission that, within the
    Phoenix MSA, the Commission's dominant carrier analysis should be
    conducted for each zip code or, in the alternative, each wire
    center. *See, e.g.*, Arizona Commission Reply at 7-10. The most
    reliable competitive data in the record are MSA-level data, which we
    have found sufficiently granular to evaluate forbearance from
    dominant carrier regulation of switched access services in prior
    orders.

[^60]: *See, e.g.*, Qwest Denver Petition, Joint Declaration from Robert
    H. Brigham and David L. Teitzel, Attach. at paras. 13-31 (Qwest
    Denver Brigham/Teitzel Decl.); Qwest Minneapolis-St. Paul Petition,
    Joint Declaration from Robert H. Brigham and David L. Teitzel,
    Attach. at paras. 13-34 (Qwest Minneapolis-St. Paul Brigham/Teitzel
    Decl.); Qwest Phoenix Petition, Joint Declaration from Robert H.
    Brigham and David L. Teitzel, Attach. at paras. 14-31 (Qwest Phoenix
    Brigham/Teitzel Decl.); Qwest Seattle Petition, Joint Declaration
    from Robert H. Brigham and David L. Teitzel, Attach. at paras. 14-34
    (Qwest Seattle Brigham/Teitzel Decl.).

[^61]: Letter from Melissa E. Newman, Vice President -- Federal
    Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket
    No. 07-97, Attach. 7 (filed May 2, 2008) (Qwest Denver May 2, 2008
    *Ex Parte* Letter); Letter from Melissa E. Newman, Vice President --
    Federal Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97, Attach. 7 (filed May 2, 2008) (Qwest
    Minneapolis-St. Paul May 2, 2008 *Ex Parte* Letter); Letter from
    Melissa E. Newman, Vice President -- Federal Regulatory, Qwest, to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97, Attach. 7
    (filed May 2, 2008), corrected by errata (filed May 5, 2008) (Qwest
    Phoenix May 2, 2008 *Ex Parte* Letter); Letter from Melissa E.
    Newman, Vice President -- Federal Regulatory, Qwest, to Marlene H.
    Dortch, Secretary, FCC, WC Docket No. 07-97, Attach. 7 (filed May 2,
    2008) (Qwest Seattle May 2, 2008 *Ex Parte* Letter); AdHoc Comments,
    Declaration of Lee L. Selwyn (AdHoc Selwyn Decl.) Attach. A at
    paras. 26-27; CLEC Group Comments at 20-21, 33-38, 54-55; COMPTEL
    Opposition at 33.

[^62]: *See* AdHoc Selwyn Decl. at paras. 2-3; Arizona Reply at 14
    (stating that "the Residential Market is competitive but dominated
    by two providers: Qwest and Cox" and that there is little evidence
    to suggest increasing competition from other providers); Colorado
    Commission Comments at 20-23; CLEC Group Reply at 14-16; Comcast
    Comments at 6*;* Letter from J.G. Harrington, Counsel to Cox
    Communications, Inc. to Marlene H. Dortch, Secretary, FCC, WC Docket
    No. 07-97, Attach. at 3-5 (filed June 17, 2008) (Cox June 17, 2008
    *Ex Parte* Letter).

[^63]: *See, e.g.*, *Verizon Communications Inc. and MCI, Inc.
    Application for Approval of Transfer of Control*, WC Docket No.
    05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, 18479-81,
    paras. 87-89 (2005) (*Verizon/MCI Merger Order)*. We do, however,
    include in our analysis competition from entities that utilize VoIP
    technology to provide voice services to their customers over their
    own network facilities -- that is, providers of "fixed" VoIP
    service, including cable operators and Qwest itself. *See, e.g.*,
    Letter from Melissa E. Newman, Vice President -- Federal Regulatory,
    Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97,
    Attach. 8 (filed May 20, 2008) (Qwest Denver May 20, 2008 *Ex Parte*
    Letter); Letter from Melissa E. Newman, Vice President -- Federal
    Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket
    No. 07-97, Attach. 8 (filed May 20, 2008) (Qwest Minneapolis-St.
    Paul May 20, 2008 *Ex Parte* Letter); Letter from Melissa E. Newman,
    Vice President -- Federal Regulatory, Qwest, to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 07-97, Attach. 8 (filed May 20, 2008)
    (Qwest Phoenix May 20, 2008 *Ex Parte* letter); Letter from Melissa
    E. Newman, Vice President -- Federal Regulatory, Qwest, to Marlene
    H. Dortch, Secretary, FCC, WC Docket No. 07-97, Attach. 8 (filed May
    20, 2008) (Qwest Seattle May 20, 2008 *Ex Parte* Letter). Although
    Qwest suggests that the Commission should include system integrators
    in our competitive analysis, we decline to do so because, as noted
    by some parties, there is no MSA-specific data in the record, it is
    unclear to what extent system integrators use Qwest facilities, and
    it may be that Qwest is more appropriately characterized as a
    partner of the system integrators than as a competitor. *See* Qwest
    Denver Petition at 24-26; Qwest Minneapolis-St. Paul Petition at
    25-26; Qwest Phoenix Petition at 25-26; Qwest Seattle Petition at
    24-26; *see also* COMPTEL Opposition at 44-45; Cox Comments at 18.

[^64]: *See, e.g.*, *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at
    21323, App. B; *Section 272(f)(1) Sunset of the BOC Separate
    Affiliate and Related Requirements, WC Docket No. 02-112; 2000
    Biennial Regulatory Review Separate Affiliate Requirements of
    Section 64.1903 of the Commission's Rules*, CC Docket No. 00-175;
    *Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) with
    Regard to Certain Dominant Carrier Regulations for In-Region,
    Interexchange Services*, WC Docket No. 06-120, Report and Order and
    Memorandum Opinion and Order, 22 FCC Rcd 16440, 16461-63, paras.
    41-42 & App. B (2007) (*Section 272 Sunset Order*); *Qwest Section
    272 Sunset Forbearance Order,* 22 FCC Rcd at 5225-27, para. 34-35;
    *AT&T Inc. and BellSouth Corporation Application for Transfer of
    Control*, WC Docket No. 06-74, Memorandum Opinion and Order, 22 FCC
    Rcd 5662, 5719-20, para. 107 (2007) (*AT&T/BellSouth Merger Order*);
    *Verizon/MCI Merger Order*, 20 FCC Rcd at 18484-89, para. 103. The
    formulas used to calculate market shares for purposes of this order
    are set forth in Appendix B. As we have done in the past, we include
    resellers and competitive lines provisioned via Qwest's UNE‑P
    replacement service in our market share calculations (the Qwest
    Platform Plus (QPP) and Qwest Local Services Platform (QLSP)
    products). Resale and QPP/QLSP lines historically have been a way
    for competitors to enter the market, are currently used as a
    competitive option, and will continue to be available after today's
    order. Furthermore, the Commission has included resale and QPP/QLSP
    lines when calculating the incumbent LEC's market share in prior
    forbearance orders. In any event, there is only a small number of
    QPP/QLSP and resold lines here and excluding them from the
    calculation would not significantly affect the market share*. See,
    e.g.*, Letter from Brad E. Mutschelknaus *et al.,* Counsel to Covad
    Communications Company *et al.*, to Marlene H. Dortch, Secretary,
    FCC, WC Docket No. 07-97 (Covad *et al.* May 15, 2008 *Ex Parte*
    Letter ); Joseph Gillan White Paper, The Irrelevance of Resale and
    RBOC Commercial Offers to Competitive Activity in Local Markets,
    Attach. at 1 (arguing that a competitive LEC "using resale or a
    Commercial Offer cannot meaningfully discipline ILEC exercises of
    market power to increase prices to the detriment of consumers");
    Letter from Brad E. Mutschelknaus *et al.*, Counsel to Covad
    Communications Group *et al.*, to Marlene H. Dortch, Secretary, FCC,
    WC Docket No. 07-97 at 8, 12-13 (Covad *et al.* Apr. 24, 2008 *Ex
    Parte* Letter).

[^65]: Letter from Melissa E. Newman, Vice President -- Federal
    Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket
    No. 07-97 at 5 & Exh. 2 (filed Mar. 10, 2008) (Qwest Denver  Mar.
    10, 2008 *Ex Parte* Letter) (Qwest's line count estimates as of
    December 2007); Letter from Melissa E. Newman, Vice President --
    Federal Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 at 10 & Exh. 2 (filed Mar. 14, 2008) (Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter) (same); Letter
    from Melissa E. Newman, Vice President -- Federal Regulatory, Qwest,
    to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 4 &
    Exh. 2 (filed Mar. 10, 2008) (Qwest Phoenix Feb. 21, 2008 *Ex Parte*
    Letter) (same); Letter from Melissa E. Newman, Vice President --
    Federal Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 at 5 & Exh. 2 (filed Mar. 5, 2008) (Qwest Seattle
    Mar. 5, 2008 *Ex Parte* Letter) (same); Qwest Denver May 20, 2008
    *Ex Parte* Letter, Attach. 8 (Qwest's fixed VoIP subscriber counts
    as of December 2007); Qwest Minneapolis-St. Paul May 20, 2008 *Ex
    Parte* Letter, Attach. 8 (same); Qwest Phoenix May 20, 2008 *Ex
    Parte* Letter, Attach. 8 (same); Qwest Seattle May 20, 2008 *Ex
    Parte* Letter, Attach. 8 (same).  

[^66]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19430, para. 28
    n.78. As the Commission explained in the *Qwest Omaha Forbearance
    Order* in a similar situation, because Qwest and other parties
    submitted their customer data grouped in categories of "residential"
    customers and "business" customers, and because the economic
    considerations that lead to the provision of service to a
    residential customer are similar to the economic considerations that
    lead to the provision of service to a very small business customer,
    we find it reasonable to treat the data submitted in this proceeding
    regarding residential customers as a proxy for the number of mass
    market customers served by each carrier. *See id*.; *see also*
    *Section 272 Sunset Order*, 22 FCC Rcd at 16461, para. 40 n.115
    ("Our analysis of concentration in the mass market relies upon data
    for residential customers because of the administrative difficulty
    of distinguishing small business data from data for other classes of
    businesses."). The methodology we adopt in this order to calculate
    market shares also avoids an issue raised by commenters that white
    page listings do not include all competitive activity in the small
    business sector. *See* Covad *et al.* Apr. 24, 2008 *Ex Parte*
    Letter at 11.

[^67]: Qwest Denver Mar. 10, 2008 *Ex Parte* Letter at 6 (Qwest's white
    page estimates as of December 2007); Qwest Minneapolis-St. Paul Mar.
    14, 2008 *Ex Parte* Letter at 11 (same); Qwest Phoenix Feb. 21, 2008
    *Ex Parte* Letter at 5 (same); Qwest Seattle Mar. 5, 2008 *Ex Parte*
    Letter at 6 (same).

[^68]: We disagree that some adjustments Qwest proposes would improve
    the accuracy of the white page listings. Specifically, (1) Qwest
    begins with all white page listings that have an NPA/NXX associated
    with a rate center that is at least partly within one of the 4 MSAs
    at issue; (2) Qwest then divides the total number of residential
    listings by **\[REDACTED\]**; (3) Qwest then multiplies the prior
    figure by the percentage of facilities-based lines that it believes
    are provided by cable telephony providers in the MSA. *See* Qwest
    Denver Apr. 22, 2008 *Ex Parte* Letter, Attach. 4; Qwest
    Minneapolis-St. Paul Apr. 22, 2008 *Ex Parte* Letter, Attach. 4;
    Qwest Phoenix Apr. 22, 2008 *Ex Parte* Letter, Attach. 4; Qwest
    Seattle Apr. 22, 2008 *Ex Parte* Letter, Attach. 4. We find certain
    of Qwest's assumptions highly questionable, and in any event not in
    accord with the approach the Commission has used previously when
    relying on white page listings to estimate the number of residential
    access lines in a market. *See, e.g.*, CLEC Group Reply at 21;
    Letter from Thomas Jones and Nirali Patel, Counsel to Cbeyond Inc.
    *et al*., to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97
    at 1 (filed May 18, 2008) (Cbeyond *et al.* May 15, 2008 *Ex Parte*
    Letter).

[^69]: We clarify that, in accord with the Commission's precedent and
    the methodology Qwest has followed in prior proceedings, we count
    each white page listing as a single residential access line in
    service for purposes of our residential market share calculations.
    *See, e.g.*, *Qwest Section 272 Sunset Forbearance Order,* 22 FCC
    Rcd at 5218 para. 17 n.62 (treating each white page listing as a
    single residential access line); Letter from Melissa E. Newman, Vice
    President -- Federal Regulatory, Qwest, to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 05-333, Attach. 1f (same) (filed Jan.
    10, 2007). We disagree that Qwest's white pages listing data
    submissions raise concerns under Section 222(b). *See, e.g.*, CLEC
    Group Reply at 19-21. White page listings are "subscriber list
    information" under the Act, which Qwest submitted as aggregated
    data. 47 U.S.C. § 222(h)(2)-(3).

[^70]: *See* Cox June 17, 2008 *Ex Parte* Letter, Attach. at 3-5. We
    find that the other market share estimates in the record are based
    on incomplete data or data that appear not to be fully up-to-date.
    *See* Colorado Office of Consumer Counsel at 9, Exhs. 2 & 3
    (providing data from a survey conducted in 2005 and 2006). The
    Arizona Commission also provided market shares but it is unclear
    what timeframe they reflect and whether the estimates are based on
    actual line data. *See, e.g.*, Arizona Commission Reply at 10-17;
    Qwest June 26, 2008 *Ex Parte* Letter at 5 (stating that Qwest is
    "unaware of Cox producing any such data to the ACC at any time in
    the last year in any regulatory docket").

[^71]: Qwest Denver Mar. 10, 2008, *Ex Parte* Letter at 4; Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter at 8; Qwest
    Phoenix Feb. 21, 2008 *Ex Parte* Letter at 2; Qwest Seattle Mar. 5,
    2008 *Ex Parte* Letter at 4; *see also* Letter from Christopher M.
    Heimann, Counsel, AT&T, to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 at 2 (filed July 18, 2008) (AT&T July 18, 2008 *Ex
    Parte* Letter) (noting the rapidly growing number of wireless
    consumers that have "cut the cord").

[^72]: *See, e.g.*, *Verizon/MCI Merger Order*, 20 FCC Rcd at 18481-83,
    paras. 90-91; *SBC Communications Inc. and AT&T Corp. Applications
    for Approval of Transfer of Control*, WC Docket No. 05-65,
    Memorandum Opinion and Order, 20 FCC Rcd 18290, 18340-42, para.
    89-90 (2005) (*SBC/AT&T Merger Order*); *AT&T/BellSouth Merger
    Order*, 22 FCC Rcd at 5711, 5714-15, paras. 90, 95-96. The
    Commission also included wireless-only households in its market
    share calculations of bundled local and long distance services in
    the section 272 sunset proceedings. *See* *Qwest Section 272 Sunset
    Forbearance Order*, 22 FCC Rcd at 5226-27, para. 35; *Section 272
    Sunset Order*, 22 FCC Rcd at 16462-63, para. 42. Although the
    Commission did not include wireless-only households in its mass
    market switched access market share calculations in the *Qwest
    Omaha* and *ACS* *Dominance* forbearance proceedings, the records in
    those proceedings did not include any data that justified including
    such services in the analysis. *See Qwest Omaha Forbearance Order*,
    20 FCC Rcd at 19452, para. 72; *ACS Dominance Forbearance Order*, 22
    FCC Rcd at 16318-19, para. 28.

[^73]: *See, e.g.*, Letter from Thomas Jones and Nirali Patel, Counsel
    to Cbeyond Inc. *et al*., to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 at 6 (filed May 7, 2008) (Cbeyond May 7, *2008* *Ex
    Parte* Letter) (stating that a recent Verizon survey found that "83%
    of respondents intend to continue to use their landline home phone
    indefinitely"); Letter from Brad Mutschelknaus *et al*., Counsel to
    Covad Communications Company *et al*., to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 07-97 (filed Apr. 22, 2008) (Covad *et
    al.* Apr. 22, 2008 *Ex Parte* Letter), Attach. 1, Kent W. Mikkelsen
    White Paper, Mobile Wireless Service to "Cut the Cord" Households in
    FCC Analysis of Wireline Competition (Mikkelsen White Paper); Letter
    from Genevieve Morelli, Counsel to Covad Communications *et al*., to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 8 (filed
    June 12, 2008). As the Mikkelsen White Paper admits, there is no
    recent empirical study that specifically considers the type of
    substitution at issue here. We are not persuaded by the purportedly
    analogous evidence the Mikkelsen White Paper offers in support of
    completely excluding mobile wireless services from the relevant
    product market, including a paper by Rodini, Ward and Woroch. *See*
    Mikkelsen White Paper at 4; Mark Rodini, Michael R. Ward, and Glenn
    A. Woroch, *Going Mobile: Substitutability Between Fixed and Mobile
    Access*, 27 [Telecomm Policy]{.smallcaps} 457, 457-76 (2003)
    (Rodini/Ward/Woroch Paper). For instance, as the authors of the
    Rodini/Ward/Woroch Paper state, their focus was on a household's
    decision to subscribe to mobile wireless service in lieu of a
    *second* fixed line and that their data were not "rich enough to
    estimate the cross-elastic effect from wireless price changes on the
    decision to subscribe to any fixed line." *Id*. at 465, 470. We also
    find the results of the Rodini/Ward/Woroch Paper provide little
    evidence of current conditions because that study relied on
    2000-2001 data and fewer than 2 percent of the sample participants
    had "cut the cord." *Id.* at 470.

[^74]: *High-Cost Universal Service Support Federal-State Joint Board on
    Universal Service*, Order, WC Docket No. 05-337, CC Docket No.
    96-45, Order, 23 FCC Rcd 8834, 8843-44, paras. 19-21 (2008)
    (*Competitive ETC Order*) (adopting an interim, emergency cap on the
    amount of high-cost support that competitive eligible
    telecommunications carriers (ETCs) may receive).

[^75]: *See, e.g.*, *AT&T/BellSouth Merger Order*, 22 FCC Rcd at 5711,
    5715, paras. 90, 96 (stating that "for certain categories of
    customers, mobile wireless service is viewed as a close substitute
    to wireline local service" and that "\[e\]ven if most segments of
    the mass market are unlikely to rely solely upon wireless services
    instead of wireline local services today, our product market
    analysis only requires that there be evidence of sufficient
    substitution for significant segments of the mass market to consider
    it in our analysis") (footnote omitted).

[^76]: *See* Letter from Daphne E. Butler, Corporate Counsel, Qwest, to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 1 (filed
    May 15, 2008) Attach., Centers for Disease Control, Wireless
    Substitution: Early Release of Estimates From the National Health
    Interview Survey, July-December 2007, Table 1 (*CDC Wireless
    Estimates*) (reporting that as of December 2007, 15.8 percent of
    households nationally have at least one mobile wireless phone but no
    wireline phone, a significant increase since December 2004 when the
    estimate was 6 percent); Covad *et al.* Apr. 22, 2008 *Ex Parte*
    Letter, Attach. 2, Joseph Gillan White Paper, Properly Estimating
    the Size of the Wireless-Only Market at 1 (*Gillan White Paper*).

[^77]: Where the Commission has relied on national estimates of wireless
    substitution, it has been to evaluate market conditions throughout a
    BOC's franchise area within a state in a context where the BOC was
    seeking a single result over a very wide geographic area. *See,
    e.g.*, *Verizon/MCI Merger Order*, 20 FCC Rcd at 18481-83, 18488,
    paras. 90-91, 103; *SBC/AT&T Merger Order*, 20 FCC Rcd at 18340-42,
    18347, paras. 89-90, 102; *AT&T/BellSouth Merger Order*, 22 FCC Rcd
    at 5714-15, 5719-20, paras. 95-96, 107; *Qwest Section 272 Sunset
    Forbearance Order*, 22 FCC Rcd at 5226-27, para. 35; *Section 272
    Sunset Order*, 22 FCC Rcd at 16462-63, para. 42. In the *Verizon 6
    MSA Order*, the Commission found that even assuming *arguendo* that
    the relevant estimate of wireless substitution in the markets at
    issue was equal to that of the CDC's national wireless substitution
    estimate, competition in those MSAs was not yet sufficiently
    extensive to warrant the requested forbearance. *See, e.g.*,
    *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21308, para. 27.
    *See also, e.g.*, *infra* para. 27 (citing Qwest's estimated market
    shares in the Denver, Minneapolis-St. Paul, and Seattle MSAs even
    assuming *arguendo* that the CDC's national wireless-only household
    data are the appropriate measures of wireless substitution). By
    determining that forbearance was unwarranted even under an approach
    favorable to the petitioner, the Commission was not endorsing the
    use of a national estimate of wireless substitution as *sufficient*
    to support forbearance in all future forbearance proceedings. In any
    event, the evidence of significant demographic variations in
    wireless substitution was directly raised in the record of this
    proceeding, and the Commission's analysis thus accounts for that
    evidence.

[^78]: *See, e.g.*, Qwest Denver Brigham/Teitzel Decl. at para. 38 &
    Exh. 5 (attaching the Telephia news release); Qwest Minneapolis-St.
    Paul Brigham/Teitzel Decl. at para. 41 & Exh. 5 (same); Qwest
    Phoenix Brigham/Teitzel Decl. at para. 30 & Exh. 5 (same); Qwest
    Seattle Brigham/Teitzel Decl. at para. 41 & Exh. 5 (same). In
    addition, on July 21, 2008, Qwest submitted a letter claiming that
    Nielsen Mobile has conducted research indicating that the wireless
    only household rate in the Phoenix MSA is **\[REDACTED\]** percent.
    *See* Letter from Daphne E. Butler, Corporate Counsel, Qwest, to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 1 (filed
    July 21, 2008) (attaching letter from Eric Fogle, a vice president
    of Nielsen Mobile). We are unable to find this estimate reliable on
    the present record in part because Qwest's submission does not
    describe Nielsen Mobile's methodology or provide any other
    information to support the significance of the data. *See* Letter
    from Thomas Jones *et al*., Counsel for Cbeyond, Inc. *et al.*, to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 (filed July
    23, 2008) (arguing, among other things, that the methodology of such
    studies must be transparent on the record to permit the Commission
    and interested parties to test the accuracy, completeness and
    reliability of the data).

[^79]: Under this approach, we would not have sufficient basis under the
    criteria of section 10 to grant Qwest relief in the other 3 MSAs.
    *See infra* para. 27.

[^80]: *See* Qwest Denver Brigham/Teitzel Decl. Exh. 5 at 5; Qwest
    Minneapolis-St. Paul Brigham/Teitzel Decl. Exh. 5 at 4; Qwest
    Phoenix Brigham/Teitzel Decl. Exh. 5 at 6; Qwest Seattle
    Brigham/Teitzel Decl. Exh. 5 at 7. We also reject certain
    commenters' reliance on geographic or demographic subcategories of
    data from the CDC study. *See* *Gillan White Paper* at 4-7; Letter
    from Brad E. Mutschelknaus and Genevieve Morelli, Counsel to Covad
    Communications *et al.*, to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 (Covad *et al.* July 2, 2008 *Ex Parte* Letter).

[^81]: *See supra* note Error: Reference source not found.

[^82]: The CDC defines the West region to include Washington, Oregon,
    California, Nevada, New Mexico, Arizona, Idaho, Colorado, Montana,
    Wyoming, Alaska and Hawaii. *See* CDC Report, Table 2, n.5.

[^83]: *See CDC Wireless Estimates*, Table 2; *see also SBC/AT&T Merger
    Order*, 20 FCC Rcd at 18341, para. 90.

[^84]: We reject an attempt to adjust the CDC's regional estimate from
    "the percentage of adults in wireless-only households" to a
    "percentage of households." Covad *et al.* July 2, 2008 *Ex Parte*
    Letter at 3. The methodology the commenters used is apparently based
    on conversations with CDC staff and is not sufficiently supported on
    the record. *See id.* at 4 n.8.

[^85]: We disagree with Qwest that its submission of the data identified
    above entitles it as a matter of law to forbearance and that the
    Commission may not use the absence of certain evidence as a basis
    for denial of a forbearance petition. *See, e.g.*, Letter from Craig
    J. Brown, Counsel to Qwest, to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 at 2-6 (filed July 15, 2008) (Qwest July 15, 2008
    *Ex Parte* Letter). The Commission need not grant forbearance based
    on evidence it finds unreliable merely because the record is
    incomplete.

[^86]: 47 U.S.C. § 160(c) (stating that "\[a\]ny telecommunications
    carrier . . . may submit a petition to the Commission requesting
    that the Commission exercise the authority granted under \[section
    10\] with respect to that carrier . . . or any service offered by
    that carrier").

[^87]: In particular, we reject Qwest's market share estimates based on
    a comparison of the number of channel terminations Qwest provides
    over DS0 and DS1 switched access lines to the number of wholesale
    voice-grade equivalent circuits Qwest provisions as UNE loops, UNE
    Enhanced Extended Links (EELs) and platform-based and resold
    business lines. *See* Letter from Daphne E. Butler, Corporate
    Counsel, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No.
    07-97 at 1-7 (filed June 25, 2008). We do not find this estimate
    reliable for several reasons. First, we find Qwest's estimate biased
    because Qwest compares its actual number of channel terminations to
    the maximum capacity of its competitors' access lines. Qwest's
    methodology also conflates mass market and enterprise switched
    access services by counting all DS0 switched access lines regardless
    of customer category. Finally, some of the voice-grade equivalent
    circuits Qwest counts as competitive switched access lines
    presumably are used to provide data services rather than switched
    access services.

[^88]: *See supra* para. 18.

[^89]: Cox June 17, 2008 *Ex Parte* Letter, Attach. at 3-5 (setting
    forth Cox's enterprise access line totals in the Phoenix MSA); *see
    also* Letter from Genevieve Morelli, Counsel to XO Communications,
    LLC, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 2
    (filed May 20, 2008) (XO May 20, 2008 *Ex Parte* Letter) (providing
    the number of lit buildings it serves in all 4 MSAs); Letter from
    Thomas Jones and Nirali Patel, Counsel to Time Warner Telecom Inc.,
    to Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 4
    (filed June 30, 2008) (Time Warner Telecom June 30, 2008 *Ex Parte*
    Letter) (same); Letter from William A. Haas, V.P. Regulatory of
    Public Policy for PAETEC Communications, Inc., to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 07-97 at 2 (filed June 30, 2008)
    (PAETEC June 30, 2008 *Ex Parte* Letter) (same), redacted version
    corrected by errata (filed July 1, 2008); Letter from Thomas Jones
    and Nirali Patel, Counsel to Integra Telecom, Inc., to Marlene H.
    Dortch, Secretary, FCC, WC Docket No. 07-97 at 1 (filed July 1,
    2008) (Integra July 1, 2008 *Ex Parte* Letter) (providing the number
    of lit buildings it serves in the Phoenix and Seattle MSAs).

[^90]: Qwest's own data shows a low correlation between the number of
    business white page listings and the number of enterprise switched
    access lines in service. *See* Qwest Denver Apr. 22, 2008 *Ex Parte*
    Letter, Attach. 4; Qwest Minneapolis-St. Paul Apr. 22, 2008 *Ex
    Parte* Letter, Attach. 4; Qwest Phoenix Apr. 22, 2008 *Ex Parte*
    Letter, Attach. 4; Qwest Seattle Apr. 22, 2008 *Ex Parte* Letter,
    Attach. 4. Moreover, the business white page listings include
    listings for a significant number of mass market switched access
    customers in addition to enterprise switched access customers. There
    is no reason to assume that other carriers' distributions of mass
    market business switched access customers and enterprise switched
    access customers are approximately identical to Qwest's
    distribution, nor that each customer purchases approximately the
    same number of switched access lines from each service provider.
    *See, e.g.*, Letter from Thomas Jones and Nirali Patel, Counsel to
    Cbeyond Inc. *et al*., to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 at 7-11 (filed June 12, 2008) (Cbeyond *et al.*
    June 12, 2008 *Ex Parte* Letter). In addition, Qwest's white page
    listings data include lines served via special access, which should
    not be included in the present analysis. *See* Qwest Reply at 10-11
    (acknowledging that the white page listings include competitive LEC
    lines "utilizing CLEC-owned switches along with either an unbundled
    loop or Special Access services purchased from Qwest"). *See also*
    Time Warner Telecom Opposition at 26-27; Cbeyond *et al.* May 15,
    2008 *Ex Parte* Letter at 1.

[^91]: *See* Qwest Denver Petition at 3; Qwest Minneapolis-St. Paul
    Petition at 3; Qwest Phoenix Petition at 3; Qwest Seattle Petition
    at 3; *see also* Qwest June 13, 2008 *Ex Parte* Letter at 2-4.

[^92]: *Compare* 47 C.F.R. Part 61, Subpart C, *with* *id*. at Subpart
    E; *see also Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19434,
    para. 39. The Part 61 rules are designed to implement the provisions
    of [sections
    201](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.10&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS201&db=1000546&utid={F92E5E25-5070-47D6-B7E5-3F01D4882304}&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications),
    [202](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.10&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS202&db=1000546&utid={F92E5E25-5070-47D6-B7E5-3F01D4882304}&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications),
    [203](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.10&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS203&db=1000546&utid={F92E5E25-5070-47D6-B7E5-3F01D4882304}&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications),
    and
    [204](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.10&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS204&db=1000546&utid={F92E5E25-5070-47D6-B7E5-3F01D4882304}&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications)
    of the Act to ensure that rates are just, reasonable, and not
    unjustly or unreasonably discriminatory. Qwest specifically asks the
    Commission to forbear from the rules in Subpart E of Part 61; that
    Subpart applies exclusively to dominant carriers.

[^93]: *Compare* 47 C.F.R. § 61.58 (tariff notice requirements for
    dominant carriers), *with* *id*. § 61.23 (tariff notice requirements
    for nondominant carriers), § 61.26 (tariffing requirements for
    competitive interstate switched access services); *see also Qwest
    Omaha Forbearance Order*, 20 FCC Rcd at 19435, para. 41.

[^94]: *See* Qwest June 13, 2008 *Ex Parte* Letter at 4; *see also Qwest
    Omaha Forbearance Order*, 20 FCC Rcd at 19435-36, para. 43.

[^95]: We recognize the strong relationship between the statutory
    forbearance criteria and the Commission's dominance analysis,
    particularly with regard to the statutory assessment of competitive
    conditions and the goal of protecting consumers. Specifically,
    section 10(a)'s mandate to forbear for a "telecommunications
    service, or class of . . . telecommunications service" in any or
    some of a carrier's "geographic markets" closely parallels the
    Commission's traditional approach under its dominance assessments to
    product markets and geographic markets, respectively. 47 U.S.C. §
    160(a). We are mindful that, when determining whether a carrier has
    market power in conducting a dominance analysis, the Commission must
    not limit itself to market share, but rather look to all four
    factors that the Commission traditionally considers. *See AT&T v.
    FCC*, 236 F.3d 729, 736-37 (D.C. Cir. 2001) (*AT&T v. FCC*). Because
    we do not undertake a stand-alone market power inquiry in this
    proceeding, this four-factor test does not bind our section 10
    forbearance analysis.

[^96]: Qwest Denver Petition at 3; Qwest Minneapolis-St. Paul Petition
    at 3-4; Qwest Phoenix Petition at 3; Qwest Seattle Petition at 3-4.
    In both the *Qwest Omaha Forbearance Order* and the *ACS Dominance
    Forbearance Order*, the Commission divided its analysis of retail
    switched access services into the mass market (residential consumers
    and small business customers) and the enterprise market
    (medium-sized and large business customers). *See Qwest Omaha
    Forbearance Order*, 20 FCC Rcd at 19427, para. 22; *ACS Dominance
    Forbearance Order*, 22 FCC Rcd at 16318, para. 27.

[^97]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19432, para. 33;
    *ACS Dominance Forbearance Order*, 22 FCC Rcd at 16323, para. 40;
    *Verizon 6 MSA Forbearance Order,* 22 FCC Rcd at 21306*,* para. 25;
    *see also Access Charge Reform, Reform of Access Charges Imposed by
    Competitive Local Exchange Carriers*, CC Docket No. 96-262, Seventh
    Report and Order and Further Notice of Proposed Rulemaking, 16 FCC
    Rcd 9923, 9938, para. 38 (2001).

[^98]: *See generally Southwestern Bell Tel. Co. v. FCC*, 153 F.3d 523,
    559 (8th Cir. 1998). Pursuant to the jurisdictional separations
    process, 25% of the cost of the loop is allocated to the interstate
    jurisdiction. 47 C.F.R. § 36.154(c). To promote economically
    efficient competition and to avoid cross-subsidization, the
    Commission has recognized that, to the extent possible, LECs should
    recover costs of interstate access in the same way that they are
    incurred. Because the cost of using a price cap carrier's common
    line does not increase with usage, the costs associated with the
    provision of this line are recovered through this flat, non-traffic
    sensitive fee. *See Access Charge Reform, Price Cap Performance
    Review for Local Exchange Carriers, Low-Volume Long-Distance Users,
    Federal-State Joint Board on Universal Service*, Sixth Report and
    Order in CC Docket Nos. 96-262 and 94-1, Report and Order in CC
    Docket No. 99-249, Eleventh Report and Order in CC Docket No. 96-45,
    15 FCC Rcd 12962, 12969-70, para. 18 (2000) (*CALLS Order*), *aff'd
    in part, rev'd in part, and remanded in part sub nom. Texas Office
    of Pub. Util. Counsel v. FCC*, 265 F.3d 313 (5th Cir. 2001), *cert.
    denied* *sub nom*. *Nat'l Ass'n of State Util. Consumer Advocates v.
    FCC*, 535 U.S. 986 (2002).

[^99]: Carrier's carrier charges include local switching, tandem
    switched transport and direct-trunked transport. 47 C.F.R. §
    69.4(b).

[^100]: 47 U.S.C. § 160(a)(1).

[^101]: *See, e.g.*, Qwest Denver Petition at 5; Qwest Minneapolis-St.
    Paul Petition at 5; Qwest Phoenix Petition at 5; Qwest Seattle
    Petition at 5.

[^102]: Qwest Denver Petition at 28-31; Qwest Minneapolis-St. Paul
    Petition at 28-32; Qwest Phoenix Petition at 28-31; Qwest Seattle
    Petition at 27-31.

[^103]: *See supra* paras. 17-23.

[^104]: *Id*. paras. 18 & 23.

[^105]: We rely on Cox's actual line count data for the Phoenix MSA that
    Cox submitted on the record. The record does not include similar
    information from the cable providers that compete in the Denver,
    Minneapolis-St. Paul, and Seattle MSAs. Therefore, as noted above,
    we rely on the actual white page listings count for purposes of
    calculating Qwest's mass market switched access market shares in the
    Denver, Minneapolis, and Seattle MSAs. *See supra* para. 18. The
    wholesale services we include in this calculation are section
    251(c)(4) resale and Qwest's QPP/QLSP service. *See* Appendix B for
    the market share calculation methodology. We note that section
    251(c)(4) resale services are made available at regulated rates.
    Qwest's QPP/QLSP service is a service that includes loops and
    switching functionality. There is no evidence to suggest that UNEs
    constrain the prices of Qwest's QPP/QLSP service, and we note that
    switching is not available at TELRIC rates, which tends to support
    this conclusion. As discussed above, consistent with our precedent,
    we would include mobile wireless-only households in our market share
    calculation but in this instance we do not have reliable
    geographically-specific data to allow us to do so. *See, e.g.*,
    *Verizon/MCI Merger Order*, 20 FCC Rcd 18481-83, paras. 90-91;
    *AT&T/BellSouth Merger Order,* 22 FCC Rcd at 5714, para. 95.

[^106]: The market share for Cox, the sole cable provider operating in
    the Phoenix MSA, is less than **\[REDACTED\]**%. Assuming *arguendo*
    that the cable operators provide every competitive residential line
    in service in the other three MSAs that is not provided by Qwest or
    by a competitive LEC using Qwest's resold or QPP/QLSP facilities,
    the implied market shares of the cable operators in the other 3 MSAs
    are less than: Denver **\[REDACTED\]**%, Minneapolis-St. Paul
    **\[REDACTED\]**%, and Seattle **\[REDACTED\]**%. For the reasons
    explained above, we are unable to make any specific findings
    regarding the percentage of wireless substitution in the 4 MSAs on
    the present record. These estimates of the cable operators' market
    shares were calculated without including any wireless substitution.
    Including wireless substitution when calculating the market shares
    of the cable operators would result in even lower market share
    estimates.

[^107]: *Id*. As explained above, we are not endorsing the use of a
    national estimate of wireless substitution as sufficient to support
    forbearance in particular local markets. *See supra* note Error:
    Reference source not found. Although Qwest submitted partial updated
    line count estimates as of May 2008, it did not submit updated fixed
    VoIP subscriber counts or updated white page listings data. *See*
    Letters from Melissa E. Newman, Vice President -- Federal
    Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket
    No. 07-97 (filed July 2, 2008) (filing four separate letters
    updating line count estimates in the Denver, Minneapolis-St. Paul,
    Phoenix, and Seattle MSAs). Rather than relying on data from Qwest
    from different time periods, we base the market shares on Qwest's
    December 2007 data. *See infra* App. B notes Error: Reference source
    not found-7. Nevertheless, we note that relying on Qwest's data as
    of May 2008 would not materially affect the market shares or the
    outcome we reach today. To support its claim that there is
    significant competition in the residential markets, Qwest provided a
    study by TNS Telecom (TNS) that calculates quarterly "shares of
    customer connections." *See* Qwest Denver Brigham/Teitzel Decl. at
    para. 6; Qwest Minneapolis-St. Paul Brigham/Teitzel Decl. at para.
    6; Qwest Phoenix Brigham/Teitzel Decl. at para. 6; Qwest Seattle
    Brigham/Teitzel Decl. at para. 6. According to Qwest, TNS collects
    actual billing information from a statistically-reliable sample of
    customers in each state and tabulates the number of residential
    customers subscribing to Qwest service (landline, DS1, or wireless)
    as well as services of non-Qwest landline and wireless competitors.
    *Id.* We declined to rely on a similar TNS study in the *Qwest
    Section 272 Sunset Forbearance Order* and we do not rely on these
    estimates here. *See Qwest Section 272 Sunset Forbearance Order*, 22
    FCC Rcd at 5231, para. 47. The estimates are based upon consumer
    purchases of any telecommunications services rather than purchases
    for the relevant product, which is local service and the estimates
    have not been shown to be based on a representative sample. In
    particular, we are not able to determine on the present record the
    size of the sample or the response rate.

[^108]: *See supra* paras. 19-22.

[^109]: *Mid-Rivers Order*, 21 FCC Rcd at 11519-21, paras. 29-34
    (declaring Qwest to be nondominant in its provision of all
    interstate telecommunications services, including access services,
    in Terry, Montana, where a facilities-based competitor served
    between 85 and 93% of the access lines); *cf*. *Rules and Policies
    on Foreign Participation in the U.S. Telecommunications Market,* IB
    Docket No. 97-142, *Market Entry and Regulation of
    Foreign-Affiliated* *Entities*, IB Docket No. 95-22, Report and
    Order and Order on Reconsideration, 12 FCC Rcd 23891, 23959, para.
    161 (1997) (establishing a presumption that foreign carriers with
    less than 50% market share in each of the relevant foreign markets,
    including the market for local access, lack sufficient market power
    to adversely affect competition in the U.S., and noting that "\[a\]s
    the authors of the 1997 edition of the American Bar Association
    *Antitrust Law Developments* publication recently concluded,
    '\[c\]ourts virtually never find monopoly power when market share is
    less than about 50 percent.'"(Quoting A.B.A. Section of Antitrust
    Law, *Antitrust Law Developments* at 235-36 (4th ed.) (1997))).

[^110]: *Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19432-33, para.
    36 (relying on "Cox's extensive facilities build‑out in the Omaha
    MSA, and growing success in luring Qwest's mass market customers");
    *ACS Dominance Forbearance Order*, 22 FCC Rcd at 16323-24, paras.
    40-41 (relying on evidence that "GCI has extensive and modern
    facilities throughout much of Anchorage, and that its network has
    sufficient capacity such that GCI could easily expand the number of
    customers it serves," and that "the growth in GCI's residential
    access line base and corresponding decline in ACS's base support our
    forbearance determination here"). We note that the Commission
    relied, as a secondary matter, on competition based on wholesale
    inputs obtained from the incumbent LEC. *See, e.g.*, *Qwest Omaha
    Forbearance Order*, 20 FCC Rcd at 19432-33, para. 36. However, we do
    not find the evidence regarding competition in the 4 MSAs based on
    resale and Qwest's QPP/QLSP service sufficient to overcome the less
    convincing evidence regarding Qwest's market shares and the success
    of its facilities-based competitors that was present in the *Qwest
    Omaha Forbearance Order* and *ACS Dominance Forbearance Order*.

[^111]: *See, e.g.*, *Qwest Omaha Forbearance Order*, 20 FCC Rcd at
    19432-33, paras. 33, 38; *ACS Dominance Forbearance Order*, 22 FCC
    Rcd at 16323-24, paras. 40, 42.

[^112]: Qwest has submitted tables summarizing its loss of switched
    access lines from 2000 to 2006. Qwest Denver Brigham/Teitzel Decl.
    at para. 5; Qwest Minneapolis-St. Paul Brigham/Teitzel Decl. at
    para. 5; Qwest Phoenix Brigham/Teitzel Decl. at para. 5; Qwest
    Seattle Brigham/Teitzel Decl. at para. 5. Qwest updated these tables
    with its loss of switched access lines from 2006 to 2007. *See*
    Qwest Denver Mar. 10, 2008 *Ex Parte* Letter at 5; Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter at 10; Qwest
    Phoenix Feb. 21, 2008 *Ex Parte* Letter at 4; Qwest Seattle Mar. 5,
    2008 *Ex Parte* Letter at 6. We also note that Qwest's requested
    forbearance could have impacts beyond the MSA level. As we noted in
    the *Verizon 6 MSA Forbearance Order*, our rules require incumbent
    LECs to geographically average their access rates. *See Verizon 6
    MSA Forbearance Order*, 22 FCC Rcd at 21311, para. 32 n.102 (citing
    *Policy and Rules Concerning Rates for Dominant Carriers*, CC Docket
    No. 87-313, Second Report and Order, 5 FCC Rcd 6786 (1990); *Price
    Cap Performance Review for Local Exchange Carriers*, CC Docket No.
    94-1, Second Further Notice of Proposed Rulemaking, 11 FCC Rcd 858,
    866 (1995)); 47 C.F.R. § 69.3(e)(7). This regulatory requirement
    causes price cap incumbents with state-wide operations, like Qwest,
    to effectively use their low-cost, urban and suburban operations to
    subsidize their higher cost rural operations. The likely effect of
    removing from price cap regulation lower cost operations in large
    urban metropolitan areas (like the ones at issue in this matter)
    would be to increase the cost to Qwest's rural operations. Because
    we deny Qwest's request for forbearance from dominant carrier
    regulation, we need not resolve the issue here. *See Verizon 6 MSA
    Forbearance Order*, 22 FCC Rcd at 21311, para. 32 n.102 (stating
    that, "\[i\]n the future, applicants for forbearance relief from
    dominant carrier rate regulation should address whether and how a
    grant of relief at the geographic level they seek would impact other
    rates in the applicable study area."). As a separate matter, Qwest's
    petitions raise issues about universal service support that are not
    addressed in the record. If a carrier seeking forbearance receives
    universal service support such as interstate access support (IAS) in
    the areas for which relief is sought, as Qwest does here, its
    petition should address how forbearance relief would affect its
    receipt of support. IAS is meant to provide support to price cap
    carriers serving lines in areas where, due to the operation of the
    SLC cap, they are unable to recover their permitted revenues from
    their SLCs. *See CALLS Order*, 15 FCC Rcd at 13043, para. 195; 47
    C.F.R. § 69.152. The SLC cap would not apply in an area where relief
    is granted. Accordingly, a carrier should explain whether it should
    continue to receive IAS, and, if so, what conditions should apply.
    Further, if a carrier asserts that it should continue to receive IAS
    after a forbearance grant of this type, it must address how to
    ensure that grant of relief does not significantly reduce the amount
    it contributes to the universal service fund. As the Commission
    discussed in the *ACS Dominance Forbearance Order*, a grant of
    forbearance relief would allow a carrier to reduce its SLC rates.
    This, in turn, would reduce the amount the carrier contributes to
    the universal service fund. *ACS Dominance Forbearance Order*, 22
    FCC Rcd at 16338, para. 72. As noted, because we deny Qwest's
    request for forbearance from dominant carrier regulation, we need
    not resolve these issues here.

[^113]: *ACS UNE Forbearance Order*, 22 FCC Rcd at 1975, para. 28 n.88
    (citing Trends in Telephone Service, Industry Analysis Division,
    Wireline Competition Bureau, 7-1 (June 2005) (noting that the
    decline of lines provided by wireline carriers might be due to some
    households eliminating second lines when they move from dial-up
    Internet service to broadband service))*; see also infra* para. 38.
    Moreover, even if Qwest's line loss data accurately captured the
    extent of competition (a position we reject above), neither Qwest
    nor others offered any persuasive rationale for determining a
    particular level of line loss to be sufficient evidence of
    competition to justify forbearance.

[^114]: 47 U.S.C. § 160(a)(1).

[^115]: Similarly, in the *Verizon 6 MSA Forbearance Order*, the
    Commission distinguished prior nondominance orders cited by Verizon.
    *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21309, paras.
    28-29.

[^116]: 47 U.S.C. § 160(a)(2).

[^117]: 47 U.S.C. § 160(a)(3).

[^118]: Because Qwest relies on the same competitive evidence in support
    of its request for forbearance from dominant carrier section 214
    discontinuance and transfer of control requirements, we deny such
    forbearance for the same reasons expressed above. *Cf*. *Qwest Omaha
    Forbearance Order*, 20 FCC Rcd at 19435-36, para. 43 (evaluating
    forbearance from dominant carrier section 214 discontinuance and
    transfer of control requirements on the basis of the same
    competitive evidence relied upon to analyze forbearance from other
    dominance carrier regulations); *ACS Dominance Forbearance Order*,
    22 FCC Rcd at 16333-34, para. 63 (same).

[^119]: *See* AdHoc Comments at 10-12; Arizona Commission Reply,
    Attachs. C, D1, D2 and D3; Comcast Comments at 6-7 (stating that it
    serves fewer than **\[REDACTED\]** enterprise business customers in
    the Seattle, Minneapolis-St. Paul and Denver markets combined; and
    that Comcast **\[REDACTED\]**); Cox June 17, 2008 *Ex Parte Letter*
    Attach. at 3-5; *see also* BT Americas Comments at 9; Covad Comments
    at 28; Time Warner Telecom Opposition at 31-32; Washington Public
    Counsel Comments at 9.

[^120]: We note that, under Commission precedent, a carrier that has
    been found to possess market power, and thus be dominant, with
    respect to particular services remains so classified absent an
    affirmative finding of changed competitive conditions. *See, e.g.*,
    *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21318-19, para. 45;
    *Section 272 Sunset Order*, 22 FCC Rcd at 16473, para. 64; *see
    generally Motion of AT&T Corp. to be Reclassified as a Non-Dominant
    Carrier*, Order, 11 FCC Rcd 3271 (1995).

[^121]: *See, e.g.*, *Qwest Omaha Forbearance Order*, 20 FCC Rcd at
    19438, para. 50 (denying forbearance from dominant carrier
    regulation of enterprise services)*; see also* *ACS Dominance
    Forbearance Order*, 22 FCC Rcd at 16342-43, paras. 84-85 (denying
    forbearance from dominant carrier regulation of special access
    services).

[^122]: *Unbundled Access to Network Elements, Review of the Section 251
    Unbundling Obligations of Incumbent Local Exchange Carriers*, WC
    Docket No. 04-313, CC Docket No. 01-338, Order on Remand, 20 FCC Rcd
    2533, 2588-96, 2625-29, paras. 93-106, 167-73 (2004) (*Triennial
    Review Remand Order*), *aff'd*, *Covad Commc'ns Co. v. FCC*, 450
    F.3d 528 (D.C. Cir. 2006).

[^123]: *Triennial Review Remand Order*, 20 FCC Rcd at 2553-55, para.
    36; 47 C.F.R. § 51.309(b) ("A requesting telecommunications carrier
    may not access an unbundled network element for the exclusive
    provision of mobile wireless services or interexchange services.").

[^124]: *Triennial Review Remand Order*, 20 FCC Rcd at 2556-57, paras.
    38-39; *see also id*. at 2556, para. 39 n.116. Some parties suggest
    that the Commission should analyze "impairment" in determining
    whether to grant forbearance from UNE obligations. *See, e.g.*,
    Colorado Commission Comments at 23-27; CLEC Group Reply at 5. As we
    have stated in the past, the Commission's unbundling framework,
    while instructive in a section 10(a) forbearance proceeding, does
    not bind the Commission's forbearance review. *See, e.g.*, *Qwest
    Omaha Forbearance Order*, 20 FCC Rcd at 19423-24, 19445, paras. 14
    n.47 & 61 n.161; *ACS UNE Forbearance Order*, 22 FCC Rcd at 1961,
    para. 5 n.13. In a forbearance proceeding, Congress has charged the
    Commission with determining whether the standards of section 10(a)
    are satisfied; those standards are not identical to the standards of
    section 251(d)(2). *Compare* 47 U.S.C. § 160(a) *with* 47 U.S.C.
    § 251(d)(2)*; see also* *Triennial Review Remand Order*, 20 FCC Rcd
    at 2556-57, para. 39 (stating that incumbent LECs are free to seek
    forbearance from unbundling rules in specific geographic markets
    once section 251(c) has been fully implemented "and the other
    requirements for forbearance have been met"); *AT&T v. FCC*, 236
    F.3d at 738 (stating that Congress established § 10 as an
    "independent means" of obtaining deregulatory relief).

[^125]: Given the characteristics of the markets at issue in the instant
    proceeding, we look for guidance first to the Commission's
    precedents involving Omaha, Anchorage, and the markets addressed in
    the Verizon 6 MSA proceeding. *See supra* para. 10 (stating that the
    Terry exchange was unique as compared to the other markets at issue
    in the Commission's UNE forbearance precedents); *see also* *Qwest
    Terry Forbearance Order*, 23 FCC Rcd at 7264, para. 13 (noting the
    "relatively small size of the Terry exchange, its relative isolation
    from major metropolitan areas, and the absence of any large business
    customers").

[^126]: We reject Qwest's argument that the Commission's analysis of
    market share in the *Verizon 6 MSA Forbearance Order* marked a
    departure from the ACS and Omaha decisions. *See, e.g.*, Qwest
    Denver  Mar. 10, 2008 *Ex Parte* Letter at 1-2; Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter at 6-7; Qwest
    Phoenix Feb. 21, 2008 *Ex Parte* Letter at 1-2; Qwest Seattle Mar.
    5, 2008 *Ex Parte* Letter at 1-2; *see also* *Verizon 6 MSA
    Forbearance Order*, 22 FCC Rcd at 21313, para. 37 n.113 (rejecting a
    similar argument made by Verizon). The framework the Commission used
    to determine whether forbearance was warranted in the Verizon 6 MSA
    proceeding was patterned after, and no more stringent than, the
    framework the Commission used for determining whether forbearance
    was warranted in the Qwest Omaha and ACS UNE forbearance
    proceedings. *See, e.g.*, Letter from John T. Nakahata, Counsel to
    EarthLink, Inc., to Marlene H. Dortch, Secretary, FCC, WC Docket No.
    07-97 at 1-4 (filed Apr. 14, 2008) (disputing Qwest's contention
    that the *Verizon 6 MSA Forbearance Order* was not based on
    precedent and explaining why the Commission's approach was
    reasonable); Time Warner Telecom Opposition at 11 (stating that the
    Commission's UNE forbearance precedent requires that an "intermodal
    competitor has demonstrated substantial success in winning retail
    market share by providing service over its own network"). In any
    event, pursuant to section 10(b), the Commission is required to
    consider competition when evaluating forbearance petitions and
    considering market shares in our analysis fits squarely within this
    directive. *See* 47 U.S.C. § 160(b).

[^127]: Cox submitted coverage estimates for its network in the Phoenix
    MSA, which show that Cox satisfies the 75 percent coverage threshold
    in certain Qwest wire centers in this market. *See* Cox June 17,
    2008 *Ex Parte* Letter, Attach at 2; *see also* Letter from Melissa
    E. Newman, Vice President -- Federal Regulatory, Qwest, to Marlene
    H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 10 (filed July 7,
    2008) (seeking clarification of Cox's coverage estimates). Because
    we do not find sufficient facilities-based competition in the
    Denver, Minneapolis-St. Paul or Seattle MSAs to warrant forbearance,
    we need not make any specific findings regarding the sufficiency of
    Qwest's methodology in estimating cable coverage in those MSAs.
    *See* Letters from Daphne E. Butler, Corporate Counsel, Qwest, to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97 (filed April
    2, 2008) (three separate letters showing cable coverage estimates in
    the Denver, Minneapolis-St. Paul, and Seattle MSAs); Covad *et al.*
    Apr. 24, 2008 *Ex Parte* Letter at 25 (arguing that the Commission
    should dismiss Qwest's information).

[^128]: *See Qwest Omaha Forbearance Order*, 20 FCC Rcd at 19447, para.
    65; *ACS UNE Forbearance Order*, 22 FCC Rcd at 1974, para. 27;
    *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21313, para. 37. In
    accord with our precedent, we see no benefit in limiting our
    competitive analysis solely to the wholesale market as some
    commenters have suggested. *See, e.g.*, Arizona Commission Reply at
    30-31; CLEC Group Reply at 5. We also decline to follow the
    recommendation of the Arizona Commission to use zip codes as the
    relevant geographic area for purposes of UNE analysis in the Phoenix
    MSA. *See* Arizona Commission Comments at 14-15; Arizona Commission
    Reply at 7 (stating that the use of data at the zip code level would
    produce better and more accurate results). Although we appreciate
    the efforts of the Arizona Commission, the approach we adopt in this
    order is consistent with the Commission's prior orders and
    appropriately balances the deregulatory aims of section 10 with
    interests in administrability. *ACS UNE Forbearance Order*, 22 FCC
    Rcd at 1968-69, para. 16. In addition, we find the most up-to-date
    and reliable data submitted for the Phoenix MSA was submitted on an
    MSA or wire center basis rather than zip code basis. Zip code
    boundaries generally do not correspond to wire center boundaries,
    and no party suggested a reliable way to translate zip code based
    data to wire center based data. *See* Arizona Commission Reply at 11
    (showing **\[REDACTED\]** zip codes are shared by the Qwest wire
    centers for which Qwest seeks relief and that only **\[REDACTED\]**
    zip codes within the area covered by these wire centers are in a
    single Qwest wire center service area). In any event, the underlying
    data on which the Arizona Commission based its summaries were not
    submitted to the record in the instant proceeding, making
    comparisons between the two records infeasible.

[^129]: In accord with our precedent, we decline to formally define
    product markets pursuant to a market power analysis for purposes of
    our UNE forbearance analysis as certain commenters requested. *See,
    e.g.*, CLEC Group Comments at 8-9 (asking the Commission to divide
    the product markets into the mass market, small business, and
    enterprise, and for each category of transport or loop facility that
    must be unbundled); CLEC Group Reply at 8-9; Arizona Commission
    Reply at 31-32 (claiming that the business market should be
    completely separate from the mass market and then disaggregated into
    small, medium and large segments); Time Warner Telecom Opposition at
    8. The Commission has never formally defined product markets for
    purposes of its UNE forbearance analysis, and nothing in the
    language of section 10 leads us to depart from this precedent and
    undertake this aspect of dominant carrier analysis here. *See ACS
    UNE Forbearance Order*, 22 FCC Rcd at 1965-66, para. 12.

[^130]: For purposes of our UNE analysis, some parties argue that the
    Commission should exclude Qwest's QPP/QLSP and resold lines from the
    market share calculation. *See, e.g.*, Covad *et al.* Apr. 24, 2008
    *Ex Parte* Letter at 8; Letter from Thomas Jones and Nirali Patel,
    Counsel to Cbeyond Inc. and One Communications Corp., to Marlene H.
    Dortch, Secretary, FCC, WC Docket No. 07-97 at 6 (filed July 9,
    2008). However, these services are not affected in this proceeding
    and, as explained above, the Commission has included these lines in
    the past and we see no reason to exclude them here. *See supra* note
    Error: Reference source not found.

[^131]: *See supra* paras. 21 & 27 (setting forth Qwest's market shares
    in the 4 MSAs). For the reasons explained above, we find the record
    does not contain data sufficient to evaluate the extent of wireless
    substitution in the specific markets at issue. We therefore do not
    need to address the merits of arguments regarding the inclusion of
    wireless substitution in our UNE forbearance analysis.

[^132]: *See* *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21313,
    para. 37 n.113 (citing precedent). Our analysis extends beyond this
    point because we do not rely on market share as the "sole
    determining factor in deciding" the outcome of this proceeding.
    *See* Qwest July 15, 2008 *Ex Parte* Letter at 7-8.

[^133]: *See* *supra* note Error: Reference source not found.

[^134]: *See* XO May 20, 2008 *Ex Parte* Letter at 2 (revealing that XO
    has constructed its own high-capacity loops to at most
    **\[REDACTED\]** commercial buildings in any of the 4 MSAs); PAETEC
    June 30, 2008 *Ex Parte* Letter at 2 (revealing that PAETEC has lit
    fiber connected to at most **\[REDACTED\]** commercial buildings in
    any of the 4 MSAs); Time Warner June 30, 2008 *Ex Parte* Letter at 4
    (revealing that Time Warner has constructed its own high-capacity
    loops to at most **\[REDACTED\]** commercial buildings in any of the
    4 MSAs); Integra July 1, 2008 *Ex Parte* Letter at 1 (revealing that
    Integra provides high-capacity retail circuits to, at most
    **\[REDACTED\]** commercial buildings in the Phoenix and Seattle
    MSAs). *See also* CLEC Group Reply at 15-16 ("As of August 2007
    there were 125,379 commercial buildings in Minneapolis, of which
    only **\[REDACTED\]** had a lit CLEC presence."); Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter at 4, 8 (noting
    that cable providers provide the "vast majority" and "by far the
    largest source of facilities-based competition" in the
    Minneapolis-St. Paul MSA); Arizona Commission Comments at 21; BT
    Americas Comments at 6; COMPTEL Opposition at 40-41; Covad Comments
    at 40-41; Cox Comments at 17.

[^135]: *See* Qwest Denver Brigham/Teitzel Decl. at para. 34 (stating
    that the number of non-Qwest fiber is now being used to serve almost
    **\[REDACTED\]** buildings in the Denver MSA); Qwest Minneapolis-St.
    Paul Brigham/Teitzel Decl. at para. 37 (similar); Qwest Phoenix
    Brigham/Teitzel Decl. at para. 34 (similar); Qwest Seattle
    Brigham/Teitzel Decl. at para. 37 (similar). We note that certain
    competitive LECs placed data in the record regarding the number of
    commercial buildings located within 300 or 1000 feet of the
    competitive LEC's fiber network. *See supra* note Error: Reference
    source not found (citing these submissions). As these competitive
    LECs explain, it frequently would not be economically feasible to
    construct loops over that distance in the absence of a demand level
    that exceeds levels for which UNEs are available, and we lack
    sufficient record data to make any specific conclusions regarding
    the coverage of these competitive LECs' networks. Finally, Qwest
    does not attempt to justify the use of a different threshold when
    evaluating competitive LEC lit buildings, other than the 75 percent
    threshold relied upon in the context of cable facilities deployment
    in prior orders. Nor do we find any other basis in the record here
    to adopt a different approach. *See also Verizon 6 MSA Forbearance
    Order*, 22 FCC Rcd at 21314, para. 37 n.118.

[^136]: Qwest Denver Brigham/Teitzel Decl. Exh. 2; Qwest Minneapolis-St.
    Paul Brigham/Teitzel Decl. Exh. 2; Qwest Phoenix Brigham/Teitzel
    Decl. Exh. 2; Qwest Seattle Brigham/Teitzel Decl. Exh. 2. To
    illustrate, in the Phoenix MSA, Qwest states that it provides more
    than **\[REDACTED\]** DS1 UNEs loops and approximately
    **\[REDACTED\]** DS1 UNE EELs in addition to a significant number of
    other categories of UNEs, and the data from the other 3 MSAs also
    demonstrate competitive LECs' significant reliance on UNEs to
    compete. Qwest Phoenix May 2, 2008 *Ex Parte* Letter, Attach. 7;
    *see* *also* Qwest Denver May 2, 2008 *Ex Parte* Letter, Attach. 7;
    Qwest Minneapolis-St. Paul May 2, 2008 *Ex Parte* Letter, Attach. 7;
    Qwest Seattle May 2, 2008 *Ex Parte* Letter, Attach. 7; AdHoc Selwyn
    Decl. paras. 26-27; CLEC Group Comments at 20; CLEC Comments at
    20-21, 33-38, 54-55; COMPTEL Opposition at 33 (stating that in
    contrast to Omaha, a significant number of competitors in the
    Denver, Minneapolis, Phoenix and Seattle MSAs use Qwest UNE loops as
    the primary vehicle for serving and acquiring customers); Letter
    from Genevieve Morelli, Counsel to Covad Communications Group, to
    Marlene H. Dortch, Secretary, FCC, WC Docket No. 07-97, Attach. at
    10-17 (filed June 10, 2008).

[^137]: *See, e.g.*, Letter from Arizona Corporation Commission,
    Commissioners, to Marlene H. Dortch, Secretary, FCC, WC Docket No.
    07-97 at 4 (filed June 18, 2008) (Arizona Commission June 18, 2008
    *Ex Parte* Letter) (noting the lack of significant wholesale
    alternatives in the wire centers where Qwest seeks relief); Letter
    from John T. Nakahata and Stephanie Weiner, Counsel to EarthLink,
    Inc. and New Edge Networks, to Marlene H. Dortch, Secretary, FCC, WC
    Docket No. 07-97 (filed July 15, 2008 (contending that EarthLink and
    New Edge Networks are not aware of any mass market or enterprise
    wholesale alternatives that do not rely on Qwest's facilities in the
    areas in the 4 MSAs where these providers offer service). We
    acknowledge that Qwest submitted some evidence that Cox offers
    wholesale DS1 and DS3 loop and transport services, which can be
    channelized, in the Phoenix MSA. *See* Letter from Melissa E.
    Newman, Vice-President -- Federal Regulatory, Qwest, to Marlene H.
    Dortch, Secretary, FCC, WC Docket No. 07-97 at 4-5 (filed May 22,
    2008). But we are unable to determine on this record that Cox is a
    significant provider of wholesale enterprise services in this MSA.
    Qwest also submitted evidence that Nextlink provides fixed wireless
    alternatives for wholesale customers seeking DS3 or multiple DS1
    loop and transport alternatives. *See* Letter from Melissa E.
    Newman, Vice-President -- Federal Regulatory, Qwest, to Marlene H.
    Dortch, Secretary, FCC, WC Docket No. 07-97 at 8-9 (filed May 15,
    2008) (Qwest May 15, 2008 *Ex Parte* Letter). For similar reasons,
    we decline to find that Nextlink is a significant provider of
    wholesale enterprise services in this MSA. *See, e.g.*, Letter from
    Brad Mutschelknaus & Genevieve Morelli, Counsel to Covad
    Communications Group *et al.*, to Marlene H. Dortch, Secretary, FCC,
    WC Docket No. 07-97 at 6-7 (filed June 16, 2008) (Covad *et al.*
    June 16, 2008 *Ex Parte* Letter) (explaining that the GeoResults
    survey data includes Nextlink which supports that this provider has
    very few last-mile facilities in the markets at issue and providing
    additional evidence that fixed wireless has not become a significant
    wholesale alternative to date); *see also* Letter from Daphne E.
    Butler, Corporate Counsel, Qwest, to Marlene H. Dortch, Secretary,
    FCC, WC Docket No. 07-97 (filed July 1, 2008).

[^138]: Qwest Denver Brigham/Teitzel Decl. Exh. 2; Qwest Minneapolis-St.
    Paul Brigham/Teitzel Decl. Exh. 2; Qwest Phoenix Brigham/Teitzel
    Decl. Exh. 2; Qwest Seattle Brigham/Teitzel Decl. Exh. 2; Qwest
    Denver May 2, 2008 *Ex Parte Letter*, Attach. 7; Qwest
    Minneapolis-St. Paul May 2, 2008 *Ex Parte* Letter, Attach. 7; Qwest
    Phoenix May 2, 2008 *Ex Parte* Letter, Attach. 7; Qwest Seattle May
    2, 2008 *Ex Parte* Letter, Attach. 7.

[^139]: *See* Qwest Denver Apr. 22, 2008 *Ex Parte* Letter, Attach. 5;
    Qwest Phoenix Apr. 22, 2008 *Ex Parte* Letter, Attach. 5; Qwest
    Minneapolis-St. Paul Apr. 22, 2008 *Ex Parte* Letter, Attach. 5;
    Qwest Seattle Apr. 22, 2008 *Ex Parte* Letter, Attach. 5; *see also*
    Arizona Commission June 18, 2008 *Ex Parte* Letter at 4 (stating
    that the Arizona Commission "will act on \[Qwest's\] petition
    shortly" in which Qwest purports that it meets certain *Triennial
    Review Remand Order* UNE triggers in eight additional wire centers
    in the Phoenix MSA); Letter from Melissa E. Newman, Vice-President
    -- Federal Regulatory, Qwest, to Marlene H. Dortch, Secretary, FCC,
    WC Docket No. 04-313, CC Docket No. 01-338, Attach. (filed June 27,
    2008) (listing 3 additional wire centers in the Phoenix MSA, and 8
    additional wire centers in the Minneapolis-St. Paul MSA, where Qwest
    contends it satisfies the non-impairment thresholds for loop and
    transport facilities established in the *Triennial Review Remand
    Order*).

[^140]: Qwest has submitted tables summarizing its loss of switched
    access lines from 2000 to 2006. Qwest Denver Brigham/Teitzel Decl.
    at para. 5; Qwest Minneapolis-St. Paul Brigham/Teitzel Decl. at
    para. 5; Qwest Phoenix Brigham/Teitzel Decl. at para. 5; Qwest
    Seattle Brigham/Teitzel Decl. at para. 5. Qwest updated these tables
    with its loss of switched access lines from 2006 to 2007. *See*
    Qwest Denver Mar. 10, 2008 *Ex Parte* Letter at 5; Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter at 10; Qwest
    Phoenix Feb. 21, 2008 *Ex Parte Letter* at 4; Qwest Seattle Mar. 5,
    2008 *Ex Parte* Letter at 6.

[^141]: *ACS UNE Forbearance Order*, 22 FCC Rcd at 1975, para. 28 n.88
    (citing Trends in Telephone Service, Industry Analysis Division,
    Wireline Competition Bureau, 7-1 (June 2005) (noting that the
    decline of lines provided by wireline carriers might be due to some
    households eliminating second lines when they move from dial-up
    Internet service to broadband service)).

[^142]: *See, e.g.*, Covad Comments at 24; Covad Reply at 9; Cbeyond *et
    al.* June 12, 2008 *Ex Parte* Letter at 2 (stating that Qwest's own
    responses confirm that there are many reasons why customers
    disconnect service for reasons other than successful competition);
    Letter from Brad Mutschelknaus and Genevieve Morelli, Counsel to
    Covad Communications *et al.*, to Marlene H. Dortch, Secretary, FCC,
    WC Docket No. 07-97 at 3-4 (filed July 11, 2008), redacted version
    corrected by errata (filed July 15, 2008) (arguing that Qwest's
    switched access line losses are more than offset by Qwest's
    increases in non-switched access lines due to customer migration);
    *see also* Qwest Denver Apr. 22, 2008 *Ex Parte* Letter, Attach. 3;
    Qwest Minneapolis-St. Paul Apr. 22, 2008 *Ex Parte* Letter, Attach.
    3; Qwest Phoenix Apr. 22 *Ex Parte* Letter, Attach. 3; Qwest Seattle
    Apr. 22, 2008 *Ex Parte* Letter, Attach. 3.

[^143]: *E.g.*, Qwest Denver Petition at 26-27; Qwest Denver
    Brigham/Teitzel Decl. at paras. 34-35 & Exh. 4; Qwest Minnesota
    Petition at 26-27; Qwest Minneapolis-St. Paul Brigham/Teitzel Decl.
    at paras. 37-38 & Exh. 4; Qwest Phoenix Petition at 26-27; Qwest
    Phoenix Brigham/Teitzel Decl. at paras. 34-35 & Exh. 4; Qwest
    Seattle Petition at 26; Qwest Seattle Brigham/Teitzel Decl. at
    paras. 37-38 & Exh. 4.

[^144]: *See, e.g.*, *Triennial Review Remand Order*, 20 FCC Rcd at
    2583, para. 82 ("These maps confirm that competitive fiber
    consistently is located in and around the core business district of
    every major city -- and not necessarily elsewhere. Due to the wide
    variability in market characteristics within an MSA, MSA-wide
    conclusions would substantially over-predict the presence of actual
    deployment, as well as the potential ability to deploy." footnotes
    omitted)); *Verizon/MCI Merger Order*, 20 FCC Rcd at 18455-56, para.
    45 n.123 (cautioning that the evidence such maps provide is
    limited).

[^145]: *Triennial Review Remand Order*, 20 FCC Rcd at 2597, para. 110
    ("These data are not complete, not representative of the entire
    industry, not readily confirmable, and aggregated at too high a
    level to be informative of local market conditions."). Similarly, to
    the extent Qwest introduces evidence that competitors advertise
    various telecommunications services, we find that such evidence
    lacks the specificity needed to grant forbearance and, for example,
    does not distinguish between competitive services that are
    self-provisioned from those provided using UNEs. *See, e.g.*, Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter at 2-3 (citing
    press releases and news reports).

[^146]: *See supra* notes Error: Reference source not found-Error:
    Reference source not found. Based on GeoTel database, Qwest reports
    the number of buildings in each of the 4 MSAs that are served by
    competitive fiber. Qwest Reply at 49.

[^147]: *See, e.g.*, Covad *et al.* Apr. 24, 2008 *Ex Parte* Letter at
    20; *see also* Letter from Brad E. Mutschelknaus *et al*., Counsel
    to Covad Communications Company *et al.*, to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 07-97, Attach. (filed Apr. 23, 2008)
    (GeoResults data) (showing by wire center service area the number of
    commercial buildings, the percent of commercial buildings served by
    facilities-based competitive LECs, and the total aggregated demand
    in DS0 equivalents); Covad *et al.* June 16, 2008 *Ex Parte* Letter
    at 5-7 (explaining the scope of the GeoResults data); Time Warner
    Telecom Opposition at 3-4 (citing GAO statistics showing that
    competitors have deployed loop facilities to only 5.7 percent of the
    commercial buildings with demand of DS1 or greater in
    Minneapolis-St. Paul, 3.7 percent of such buildings in Phoenix and
    3.8 percent of such buildings in Seattle, and providing the actual
    percentage of commercial buildings in the 4 MSAs to which Time
    Warner Telecom has constructed loops); *see also id*. at 21 (stating
    that "Eschelon relies exclusively on Qwest loops to serve business
    customers" in the markets at issue in this proceeding). Although
    Qwest claims that the GeoResults data are in error because they
    include 141 wire center service areas where Qwest does not seek
    forbearance, we find it highly unlikely that removing these areas
    from the data would result in a coverage estimate approaching the 75
    percent threshold relied upon by the Commission in the past. *See*
    Letter from Daphne E. Butler, Corporate Counsel, Qwest, to Marlene
    H. Dortch, Secretary, FCC, WC Docket No. 07-97 at 1-2 (filed July
    21, 2008); *see also supra* note Error: Reference source not found.

[^148]: *See, e.g.*, Time Warner Telecom Opposition at 28; Qwest May 15,
    2008 *Ex Parte* Letter at 7-8.

[^149]: *See* Qwest Denver Petition at 24; Qwest Minneapolis-St. Paul
    Petition at 24-25; Qwest Phoenix Petition at 24-25; Qwest Seattle
    Petition at 24.

[^150]: *See, e.g.*, *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at
    21317-18, para. 42.

[^151]: 47 U.S.C. § 160(a)(2).

[^152]: 47 U.S.C § 160(a)(3). In making its public interest
    determination, the Commission must consider whether forbearance from
    enforcing the provision or regulation will promote competitive
    market conditions, including the extent to which forbearance will
    enhance competition among providers of telecommunications services.
    *Id*. § 160(b).

[^153]: Because we otherwise are denying Qwest's request for forbearance
    from UNEs in the 4 MSAs, we need not specifically address the
    remaining arguments why these forbearance requests should be denied.
    *See, e.g.*, Covad Comments at 22 (stating that the Commission
    cannot rely here on the same predictive judgment it exercised in
    Omaha regarding Qwest's future behavior and how that conduct would
    impact competition if forbearance is granted); Washington Commission
    Comments at 3 (claiming that if the Commission were to grant Qwest's
    forbearance petition, it "would undercut the very foundation and
    delicate balance" of past state decisions").

[^154]: Qwest clarified that it was seeking relief "from the application
    of the Commission's *Computer III* requirements, including \[CEI and
    ONA\] requirements, to the mass market and enterprise switched
    access services at issue here to the extent that Qwest offers
    information services in conjunction with such services" and
    "formally withdraws its request for forbearance from the *Computer
    III* requirements of transmission access and nondiscrimination in
    light of earlier Commission decisions." *See* Qwest June 13, 2008
    *Ex Parte* Letter at 5. Qwest also clarified that its forbearance
    request does not extend to Qwest information services to the extent
    that they incorporate telecommunications components other than the
    services at issue here and maintains its request as to the
    BOC-specific *Computer III* obligations, which will allow Qwest to
    respond quickly to customer demands for information services with
    innovative offerings. *Id.* We note that Qwest previously has
    obtained significant relief from *Computer III* requirements. *See,
    e.g.*, *Appropriate Framework for Broadband Access to the Internet
    over Wireline Facilities*, CC Docket No. 02-33, Report and Order and
    Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14875-76, para. 41
    (2005), *aff'd*, *Time Warner Telecom v. FCC*, No. 05-4769 (and
    consolidated cases) (3rd Cir. Oct. 16, 2007). Our actions in this
    Order do not disturb regulatory relief from *Computer III*
    requirements that Qwest already has obtained.

[^155]: 47 U.S.C. § 160(a).

[^156]: *See* Qwest Reply at 55-56 (arguing that the traditional reason
    for the *Computer Inquiry* rules was that the telephone was the
    primary, if not exclusive means through which information service
    providers can gain access to their customers).

[^157]: *Verizon 6 MSA Forbearance Order*, 22 FCC Rcd at 21318, para.
    45; *see also Amendment of Section 64.702 of the Commission's Rules
    and Regulations*, 77 FCC 2d 384, 466-67, para. 216 (1980)
    (subsequent history omitted); *Computer III Phase I Order*, 104 FCC
    2d at 1013, para. 100. "Exclusionary" (or "Bainian") market power,
    which is the "ability of a firm profitably to raise and sustain its
    price significantly above the competitive level by raising its
    rivals' costs and thereby causing the rivals to restrain their
    output." *See Regulatory Treatment of LEC Provision of Interexchange
    Services Originating in the LEC's Local Exchange Area and Policy and
    Rules Concerning the Interstate, Interexchange Marketplace*, CC
    Docket Nos. 96-149, 96-61, Second Report and Order in CC Docket No.
    96-149 and Third Report and Order in CC Docket No. 96-61, 12 FCC Rcd
    15756, 15802-03, para. 83 (1997) (citing Thomas G. Krattenmaker,
    Robert H. Lande & Steven C. Salop, *Monopoly Power and Market Power
    in Antitrust Law,* 76 [Geo. L.J.]{.smallcaps} 241, 249-53 (1987)),
    *recon. denied*, Second Order on Reconsideration and Memorandum
    Opinion and Order, 14 FCC Rcd 10771 (1999).

[^158]: *See Qwest Section 272 Sunset Forbearance Order*, 22 FCC Rcd at
    5231, para. 47 (stating that "Qwest has failed, however, to present
    persuasive evidence that it no longer possesses exclusionary market
    power within its region as a result of its control over a ubiquitous
    telephone exchange service and exchange access network."); *see also
    Section 272 Sunset Order*, 22 FCC Rcd at 16449-50, para. 17.

[^159]: *See* 47 U.S.C. § 160(c) (deeming the petition granted as of the
    forbearance deadline if the Commission does not deny the petition
    within the time period specified in the statute); 47 C.F.R. §
    1.103(a) ("The Commission may, on its own motion or on motion by any
    party, designate an effective date that is either earlier or later
    in time than the date of public notice of such action.").

[^160]: This approach is consistent with our methodology for calculating
    market share in prior orders. *See* *Verizon 6 MSA Forbearance
    Order*, 22 FCC Rcd at 21323, App. B.

[^161]: *See supra* paras. 19-22 (explaining the need for reliable
    geographically-specific data).

[^162]: In December 2006, there were 72.8 million primary residential
    lines and 8.5 non-primary residential lines nationwide. *See*
    Statistics of Common Carriers, Table 2.4 - Access Lines in Service
    by Customer for Reporting Incumbent Local Exchange Carriers as of
    December 31, 2006, *available at*
    <http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-282813A1.pdf>.
    This suggests that 88% of households with wireline service have a
    single wireline phone.

[^163]: Qwest Denver Mar. 10, 2008 *Ex Parte* Letter at 5 (providing
    residential data as of December 2007); Qwest Minneapolis-St. Paul
    Mar. 14, 2008 *Ex Parte* Letter at 10 (same); Qwest Phoenix Feb. 21,
    2008 *Ex Parte* Letter at 4 (same); Qwest Seattle Mar. 5, 2008 *Ex
    Parte* Letter at 5 (same).

[^164]: Qwest Denver May 20, 2008 *Ex Parte* Letter, Attach. 8
    (providing Qwest's fixed VoIP subscriber counts as of December
    2007); Qwest Minneapolis-St. Paul May 20, 2008 *Ex Parte* Letter,
    Attach. 8 (same); Qwest Phoenix May 20, 2008 *Ex Parte* Letter,
    Attach. 8 (same); Qwest Seattle May 20, 2008 *Ex Parte* Letter,
    Attach. 8 (same). Qwest's residential VoIP counts include customers
    that are using the service for "both inbound and outbound local
    calling." *Id.*

[^165]: Qwest Denver Mar. 10, 2008 *Ex Parte* Letter, Exh. 2; Qwest
    Minneapolis-St. Paul Mar. 14, 2008 *Ex Parte* Letter, Exh. 2; Qwest
    Phoenix Feb. 21, 2008 *Ex Parte* Letter*,* Exh. 2; Qwest Seattle
    Mar. 5, 2008 *Ex Parte* Letter, Exh. 2.

[^166]: For facilities-based residential access lines in Denver,
    Minneapolis-St. Paul, and Seattle, we undo the adjustments Qwest
    made to its estimate of facilities-based competitive LEC access
    lines in service in accord with the Commission's precedent. *See*
    Qwest Denver Mar. 10, 2008 *Ex Parte* Letter at 6 (Qwest's white
    page estimates as of December 2007); Qwest Minneapolis-St. Paul Mar.
    14, 2008 *Ex Parte* Letter at 10-11 (same); Qwest Seattle Mar. 5,
    2008 *Ex Parte* Letter at 6 (same); *see also supra* note Error:
    Reference source not found. For facilities-based residential access
    lines in the Phoenix MSA, we rely on data provided by Cox. Cox June
    17, 2008 *Ex Parte* Letter, Attach. at 3-5.

[^167]: Qwest submitted various estimates of its share of mobile
    wireless households and Qwest's wireless subscribers. *See* Qwest
    Denver Apr. 22, 2008 *Ex Parte* Letter, Attach. 2 (estimating
    Qwest's share of mobile wireless households in the MSA using TNS
    Telecoms data and statewide wireless data and Qwest's wireless
    subscribers); Qwest Minneapolis-St. Paul Apr. 22, 2008 *Ex Parte*
    Letter, Attach. 2 (same); Qwest Phoenix Apr. 22, 2008 *Ex Parte*
    Letter, Attach. 2 (same); Qwest Seattle Apr. 22, 2008 *Ex Parte*
    Letter, Attach. 2 (same); *see also* Qwest June 13, 2008 *Ex Parte*
    Letter at 5 (clarifying that Qwest's wireless subscriber counts are
    the same as the number of wireless phone numbers). In light of our
    questions about the reliability of certain data in this proceeding,
    we do not address the merits of Qwest's estimates of its share of
    mobile wireless households. Rather, as in prior proceedings, we use
    the Numbering Resource and Utilization Forecast (NRUF) database and
    the number of Qwest's wireless phone numbers to estimate Qwest's
    share of mobile wireless-only households in the geographic area at
    issue. We reiterate our insistence on reliable and geographically
    specific data in future forbearance proceedings, but find that Qwest
    has not sufficiently supported its case for forbearance on the basis
    of such evidence here. *See supra* paras. 19-22. We do not find
    sufficient evidence in the record to exclude other incumbent
    LEC-affiliated wireless carriers operating in Qwest's region from
    the competitors' market share. *See, e.g.*, Letter from Thomas
    Jones, Counsel for Cbeyond, Inc. *et al.*, to Marlene H. Dortch,
    Secretary, FCC, WC Docket No. 07-97 at 4-6 (filed July 22, 2008).
    Nor do we find sufficient evidence in the record to exclude Qwest's
    wireless service from its market share. *See* Letter from Daphne E.
    Butler, Corporate Counsel, Qwest, to Marlene H. Dortch, Secretary,
    FCC, WC Docket No. 07-97 at 3-5 (filed July 1, 2008), corrected by
    errata (filed July 2, 2008); AT&T July 18, 2008 *Ex Parte* Letter at
    5-6.