**Before the**Error! Bookmark not defined.

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Petition of Ameritech Corporation )

for Forbearance from Enforcement of ) CC Docket No. 98-65

Section 275(a) of the Communications )

Act of 1934, As Amended )

**MEMORANDUM OPINION AND ORDER**

**Adopted:** August 11, 1999 **Released:** August 31, 1999

By the Commission: Chairman Kennard issuing a statement; Commissioners
Furchtgott‑Roth and Powell dissenting and issuing separate statements.

**I. INTRODUCTION**

1\. On May 13, 1998, Ameritech Corporation (Ameritech) filed a petition
requesting that we exercise our authority under section 10 of the
Communications Act of 1934, as amended (Communications Act or Act), to
forbear from applying the provisions of section 275(a) of the
Communications Act to Ameritech\'s alarm monitoring operations.[^1] For
the reasons set forth below, we deny Ameritech\'s petition.

**II. BACKGROUND**

**A. Alarm Monitoring**

2\. Alarm monitoring services rely on devices placed within customer
premises to detect possible threats \"to life, safety, or property, from
burglary, fire, vandalism, bodily injury, or other emergency.\"[^2] When
triggered, these devices transmit signals via \"transmission facilities
of a local exchange carrier or one of its affiliates to a remote
monitoring center to alert a person at such center of the need to inform
the customer or another person or police, fire, rescue, security, or
public safety personnel of such threat.\"[^3]

3\. Congress addressed Bell Operating Company (BOC) provision of alarm
monitoring services in section 275 of the Communications Act,[^4] which
was enacted as part of the Telecommunications Act of 1996 (1996
Act).[^5] Section 275(a)(1) prohibits any BOC, that had not been engaged
in providing alarm monitoring services as of November 30, 1995, from
engaging in the provision of alarm monitoring services \"prior to the
date which is 5 years after the date of enactment of the \[1996
Act\] . . . .\"[^6] Section 275(a)(2) permits any BOC that was engaged
in the provision of alarm monitoring services as of November 30, 1995,
either directly or through an affiliate, to continue to provide alarm
monitoring services.[^7] Section 275(a)(2) specifies, however, that
neither the BOC nor its affiliates may \"acquire any equity interest in,
or obtain financial control of, any unaffiliated alarm monitoring
service entity\" from November 30, 1995 \"until 5 years after the date
of enactment of the \[1996 Act\] . . . .\"[^8]

4\. Ameritech began providing alarm monitoring services during 1994. In
the *Alarm Monitoring Report and Order*, the Commission determined that
section 275(a)(2) grandfathered Ameritech\'s pre-November 30, 1995 alarm
monitoring operations.[^9] Since the passage of the 1996 Act on February
8, 1996, Ameritech has expanded its alarm monitoring operations through
the following acquisitions:

  ------------------------------------------------------- ---------------
  **ACQUISITION**                                         **DATE**

  All Assets of Circuit City Corporation\'s Home Security 6/28/96
  Division (Circuit City)                                 

  All Assets of Central Control Alarm Corporation         4/16/97
  (Central Control)                                       

  All Assets of Norman Systems Securities, Inc., (Norman  4/18/97
  Systems)                                                

  All Assets of Masada Security, Inc. (Masada Security)   6/19/97

  Six Subsidiaries of Republic Security Companies Holding 10/3/97
  Co., Inc. (Republic )                                   

  All Assets of Rollins, Inc. (Rollins)                   10/3/97
  ------------------------------------------------------- ---------------

5\. In August 1996, the Alarm Industry Communications Committee (AICC)
filed a motion with the Commission alleging that Ameritech\'s 1996
acquisition concerning Circuit City violated section 275(a)(2). In March
1997, the Commission concluded that section 275(a)(2) did not preclude
that transaction.[^10] In December 1997, the United States Court of
Appeals for the District of Columbia Circuit vacated that judgment and
remanded the case to the Commission.[^11] In September 1998, the
Commission determined on remand that the Circuit City acquisition
violated section 275(a)(2) and directed Ameritech to show cause why the
Commission should not issue a cease and desist order with regard to that
purchase.[^12] In July 1998, the Commission issued a similar *Order to
Show Cause* in relation to the Central Control, Norman Systems, and
Masada Security acquisitions.[^13] In October 1997, AICC requested that
we issue an Order to Show Cause directed against Ameritech\'s Republic
acquisition.[^14]

**B. Section 10**

6\. Section 10 of the Communications Act authorizes the Commission to
forbear from applying any provision of the Act to a telecommunications
carrier, if the Commission determines that \--

\(1\) enforcement of such regulation or provision is not necessary to
ensure that the charges, practices, classifications or regulations by,
for, or in connection with that telecommunications carrier or
telecommunications service are just and reasonable, and are not unjustly
or unreasonably discriminatory;

\(2\) enforcement of such regulation or provision is not necessary for
the protection of consumers; and

\(3\) forbearance from applying such provision or regulation is
consistent with the public interest.[^15]

In making the public interest determination, the Commission must
consider whether forbearance will promote competitive market conditions,
including the extent to which forbearance will enhance competition among
providers of telecommunications services.[^16] Section 10(b) also
provides that, \"\[i\]f the Commission determines that such forbearance
will promote competition among providers of telecommunications services,
that determination may be the basis for a Commission finding that
forbearance is in the public interest.\"[^17]

**III. DISCUSSION**

7\. As noted above, section 10(a) authorizes the Commission to forbear
from applying a provision of the Act only if all three of the criteria
of section 10(a) are met. These criteria include a finding that such
forbearance is consistent with the public interest. In the *CMRS
Forbearance Order*,[^18] the Commission determined that in order to meet
the public interest forbearance criterion, a petitioner must explain how
the benefits of a statutory provision can be attained in the event of
forbearance. AICC and AT&T argue that Ameritech does not satisfy this
criterion.[^19] We agree.

8\. In enacting section 275(a), Congress made a policy judgment that the
restrictions on Ameritech\'s alarm monitoring operations should sunset
on February 8, 2001. Ameritech\'s petition is, in effect, a request that
we adopt an earlier sunset date. Ameritech, however, does not contend
that any changed or unanticipated circumstance warrants an earlier
sunset. Instead, Ameritech recognizes that section 275 represents a
legislative compromise,[^20] and essentially asks us to reopen and upset
that compromise based on arguments Congress found unpersuasive in
1996.[^21]

9\. In these circumstances, we find that forbearance is not in the
public interest. Given Ameritech\'s failure to present any new or
unanticipated circumstance that might have persuaded Congress to adopt
an earlier sunset date, it would be inconsistent with the public
interest for us to shorten the period during which Ameritech
participation in alarm monitoring should be restricted or otherwise
upset Congress\' judgment on how to promote competitive conditions in
the alarm monitoring market.

10\. Accordingly, the public interest criterion for granting forbearance
under section 10(a) has not been met on the record in this proceeding.
Because section 10(a) provides for forbearance only when all three of
its criteria are met, we thus find it unnecessary to address whether
Ameritech\'s petition meets the other criteria.

11\. On the basis of the foregoing, we conclude that Ameritech\'s
petition for forbearance from the application of section 275(a) to
Ameritech\'s alarm monitoring operations does not meet the statutory
criteria for forbearance. We therefore deny that petition.

**IV. ORDERING CLAUSE**

12\. Accordingly, IT IS ORDERED, pursuant to Section 10 of the
Communications Act of 1934, as amended, 47 U.S.C. § 160, that
Ameritech\'s Petition for Forbearance from Enforcement of Section 275(a)
of the Communications Act of 1934 IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**SEPARATE STATEMENT OF CHAIRMAN KENNARD**

The Commission's authority under section 10 of the Act is an important
deregulatory tool. I am strongly committed to exercising this authority
whenever the statutory standard is met. Because Ameritech has not met
the statutory standard, we are not permitted under the Communications
Act to forbear here.

AICC has argued that forbearing in this situation would render section
10 an unlawful delegation of legislative authority by Congress. The
Commission need not reach this issue because Ameritech did not meet the
statutory standard for forbearance. I want to take this opportunity to
express my view that section 10 is a constitutional exercise of
congressional authority. In any event, this particular forbearance
petition involves an unusual situation where there has been no showing
of any change in circumstances that would undercut the congressional
rationale for this recently enacted, targeted statutory provision with
an explicit short-term expiration date. It is highly unlikely that such
situations will arise in the future. Thus, I do not anticipate that
there will be any future substantial issues of unlawful delegation by
Congress with respect to section 10.

I also take this opportunity, in response to my colleague, to note that
the Common Carrier Bureau had clear authority to extend the time period
for action on Ameritech's petition. Commission rules recognize that the
authority of the Bureau to carry out "the functions of the Commission
under the Communications Act of 1934, as amended, except as reserved to
\[the\] Commission under Sec. 0.291." Sec. 0.291 does not reserve to the
Commission the authority to grant extensions of time and hence that
authority is within the purview of the Bureau. My colleague suggests
that the decision as to whether to extend a time period presents "novel
questions of fact, law or policy which cannot be resolved \[by the
Bureau\] under outstanding precedents and guidelines." Yet time
extensions are anything but novel. In a wide variety of contexts the
Common Carrier Bureau has extended time periods, as well as denied
extension requests, as appropriate, and has never, to my knowledge, been
reversed by the Commission. The Bureau thus has always exercised its
authority in a lawful and appropriate manner, as it did here. Unless and
until the Commission acts to reverse such Bureau action, it is the law.
47 U.S.C. Sec. 5(c)(3).

**DISSENTING STATEMENT OF**

**COMMISSIONER HAROLD FURCHTGOTT‑ROTH**

*Re: Petition of Ameritech Corporation for Forbearance from Enforcement
of Section 275(a) of the Communications Act of 1934, As Amended.*

I respectfully dissent from this item denying Ameritech\'s Petition for
Forbearance from section 275(a) of the Communications Act of 1934, as
amended.

I conclude that Ameritech\'s petition has been \"deemed granted\" in
full because of the Commission\'s failure either (i) to deny the
petition within one year after receiving it, or (ii) to make an explicit
finding that a 90 day extension was necessary to meet the statutory
requirements. Section 10 of the Communications Act is very clear: \"The
Commission may extend the initial one-year period by an additional 90
days if the Commission finds that an extension is necessary to meet the
requirements of subsection (a).\" The statute is thus specific that it
is the \"Commission\" that must grant any extension and that it must do
so upon a finding that the extension is necessary to meet the purposes
of section 10(a). I do not believe that the Bureau, acting on its own
motion and without even prior consultation with the \"Commission,\" can
act to extend this statutory time-frame. I do not believe that the 90
day extension can be effectively used by the Bureau without even
briefing the Commission on the merits of the underlying petition,
determining whether or not there are any new or novel questions of fact,
law or policy, and receiving some signal from a majority of the
\"Commission\" that an extension of time is warranted under these
particular circumstances.

The Commission\'s own rules demonstrate that the Common Carrier Bureau
may not act on delegated authority to extend the statutory deadline.
Specifically, Section 0.91(f) of the Rules permits the Bureau to
\"\[carry\] out the functions of the Commission under the Communications
Act of 1934, as amended, except as reserved to \[the\] Commission under
Sec. 0.291.\" Section 0.291(2) states that the Bureau shall not have
authority to act on issues \"which present novel questions of fact, law
or policy which cannot be resolved under outstanding precedents and
guidelines.\" The Commission has not established criteria for
determining when and if the extension specifically permitted by statute
in Section 10 of the Communications Act is warranted.[^22] Thus, the
question of whether an extension is necessary is a novel question of
fact, law or policy that may not be resolved under existing Commission
precedent, and therefore, may not be answered on delegated authority.
Indeed, the only criterion which the Bureau seems to follow is that they
will routinely grant Section 10 extensions. Clearly, section 10 does not
contemplate a routine extension.

**SEPARATE STATEMENT OF COMMISSIONER MICHAEL K. POWELL, DISSENTING**

*In the Matter of Petition of Ameritech Corporation for Forbearance from
Enforcement of Section 275(a) if the Communications Act, as Amended, CC
Docket No. 98-65, Memorandum Opinion and Order.*

There are quite a few problems with this Order, both in terms of what it
says and what it does not say. For starters, the Order misinterprets and
misapplies section 10\'s public interest prong by shifting an
unsubstantiated burden to the petitioner and applying the wrong
standard. Specifically, the item says that in order to meet this
forbearance criterion (section 10(a)(3)), a petitioner must explain how
the benefits of a statutory provision can be attained in the event of
forbearance.[^23]

This new principle, suggested by the alarm industry, would recognize
that we are dealing with an act of Congress passed a relatively short
time ago (1996) which sunsets a little more than a year from now. It
would require that Ameritech show that there are "new or unanticipated
circumstance\[s\] that might have persuaded Congress to adopt an earlier
sunset."[^24] Yet, nothing in the text or legislative history of section
10 requires or suggests "changed circumstances" as a prerequisite to
forbearance of a statutory provision. Nor has the Commission ever
employed this standard for denying forbearance and the item cites none.
So, where does this new standard come from?

a\. Apparent Constitutional Concerns Are Not A Basis For Failing To
Follow Congressional Direction.

AICC argues that failure to read in a requirement that circumstances
must be shown to have changed before forbearing from a statutory
provision would constitute an unconstitutional delegation of authority
to the FCC. Perhaps out of this concern -- and I can only surmise since
it is not addressed -- the Order summarily dismisses the petition to
forbear from a statutory provision, stating flatly that nothing has
changed since its adoption. I, too, find something disquieting about
Congress delegating broad authority to an independent agency to sweep
away a legislative act, particularly where little has changed since the
time the legislative act was consummated. But, my discomfort is no
greater than that I feel with respect to the extraordinarily broad
authority we regularly invoke to promulgate rules or expand regulatory
coverage beyond the express terms of statutes. Moreover, regardless of
our constitutional concerns with the statute, we are duty bound to
comply with clear congressional directives. [^25]

Based on my brief review of precedent in this area, I believe that it is
quite questionable that a court would find section 10 to be an
unconstitutional delegation of authority, or otherwise contravene the
separation of powers, under the long line of applicable judicial
precedent. In order to avoid a delegation infirmity, Congress need only
set out an "intelligible principle to which the person or body
authorized \[to act\] is directed to conform. . ."[^26] With respect to
section 10, Congress has provided a three-prong analysis to guide our
forbearance decisions. And with respect to the final \"public interest\"
finding, Congress has offered specific guidance as to the things that
\"shall\" be taken into consideration. Specifically, Congress commands
the Commission to consider whether forbearance from enforcing the
provision or regulation will promote competitive market conditions,
including the extent to which such forbearance will enhance competition
among providers of telecommunications services. 47 U.S.C. § 160(b). If
the Commission determines that forbearance will promote competition
among providers of telecommunications services, that determination may
be the basis for a Commission finding that forbearance is in the public
interest.

In my attempt here to defend section 10 from this constitutional attack
by AICC, which the majority does not do, I cannot resist making the
observation that if section 10 is constitutionally suspect on this
basis, many of the other standards presently applied to justify our
[regulatory]{.underline} actions are as well. For example, the "public
interest, convenience and necessity" standard is unbounded yet has been
upheld against constitutional attack. *See*, *e.g.*, *FCC v. Pottsville
Broadcasting Co.*, 309 U.S. 134, 138 (1940); *National Broadcasting Co.
v. United States,* 319 U.S. 190 (1943). The Commission has also reached
for \"ancillary jurisdiction\" or other broad \"necessary and proper\"
delegations as a basis for regulating the cable industry and, more
recently, asserted such plenary power in an unconstrained manner to
extend coverage of section 255 to non-telecommunications services and
the 1996 Act to private building owners and managers. I personally have
never fully agreed with the courts\' apparent sanctioning of such broad
grants, but such decisions are the law. *See, e.g*., *Texas Office of
Public Utility Counsel v. FCC*, 1999 WL 556461 (5^th^ Cir. 1999)
(holding that section 4(i) of the Act permits support of non-
telecommunications carriers providing internet access and internal
connections to schools and libraries as "necessary to fulfill \[the
Act\'s\] primary directives.")

I am disturbed to note, however, that broad grants of authority to
impose new regulations often proceed with little hesitation, but in the
application of a broad grant to deregulate like section 10, we suddenly
(apparently) give in to a concern about unconstitutional delegations of
authority. Moreover, I disagree that the Commission can ignore a
congressional directive because a party has argued that such directive
might be unconstitutional. Nor do I believe it is free to import
additional criterion, which are not necessary to cure any potential
constitutional infirmity. But, ironically, this Order short shrifts the
congressionally crafted \"intelligible principles\" in section 10. That
is, arguably the allegiant application of the three-prong test set out
in section 10 is essential in order not to usurp unconstrained
legislative power which might give rise to separation of power concerns.

Yet, here (as we have done before over my objections), the item
summarily dismisses a properly presented and well-supported forbearance
petition, resting exclusively on only one of the three guiding
principles set out by Congress -- as applied the apparently broad,
catch-all public interest prong. More disturbingly, as noted above, the
application of that prong in this case fails to take into account the
specific direction to consider the promotion of competition when
evaluating this basis of decision. Rather, the item perpetuates an
open-ended notion of \"public interest,\" to import (at the eleventh
hour) new and novel additional requirements.

**\"Changed Circumstances.\"**

There is no attempt to even find "changed circumstances" or apply this
new test in this Order. Even if "changed circumstances" were relevant,
can we not point to the circumstances facing Ameritech and SBC in their
merger (in which the alarm industry is requesting that we require
divestiture of all of Ameritech\'s alarm monitoring assets because SBC
is not grandfathered)? Can we not rely on the implementation on our
non-structural safeguards or the other safeguards that apply to other
LECs in section 275? Can not we point to the fact that the Commission\'s
own interpretation of section 275, after a loss in the D.C. Circuit, has
changed, essentially putting a halt to any expansion by Ameritech\'s
alarm monitoring affiliate? No, the burden is shifted to Ameritech.

**Sections 10 and 275(a) Can Coexist.**

By its terms, section 10 unequivocally can be applied to section 275.
Forbearance must be applied to both Commission regulations and to
provisions of the Communications Act, including those added by the 1996
Act. Indeed, the statute itself in section 10(d) lists the provisions
for which forbearance is not available (excluding section 275): \"the
Commission may not forbear from applying the requirements of section
251(c) or 271 . . . until it determines that those requirements have
been fully implemented.\" 47 U.S.C. § 160(d). The Commission has already
forborne from section 272 of the 1996 Act in connection with RBOC
provision of

E-911[^27] and reverse directory services.[^28] Even where the
Commission refused to forbear from section 254(g), it never mentioned
that forbearance would be impossible in view of the simultaneous
enactment of that provision and section 10.

I would agree that many of the points that argue for forbearance (some
of which I set forth below) were probably the case at the time section
275 was adopted. True enough, but one answer is simply because at the
same time 275 was adopted, so was section 10 and we are duty-bound to
apply it, without regard to alleged constitutional concerns. A second
answer, however, is that Congress set out a comprehensive scheme in the
1996 Act which required many complex judgments that it did not believe
it could responsibly make without thorough analysis. Also, there are a
lot of deals and compromises that get into large pieces of legislation
like this. Consequently, Congress concurrently established certain bars
or limitations as starting points and delegated to the Commission the
job of carefully evaluating such provisions to see if less regulatory
devices existed to render unnecessary blanket bans against certain
activity. Indeed, the advantage of forbearance is that it requires
case-by-case evaluation, where a flat rule has dangers of being
over-inclusive. Congress may have wished to establish a default
presumption that barred entry, which could be rebutted through
forbearance in a certain case.

It is also important to observe that Congress understood that it could
not possibly sort through the panoply of FCC regulations and antitrust
doctrine that might assuage some of its concerns with respect to
competition. Instead, it may have chosen to direct the FCC to make such
an assessment and if convinced, following its \"intelligible
principle,\" that if the provision was unnecessary, it could forbear.
Therefore, in concluding that there must be a peaceful coexistence of
sections 10 and 275(a), the original intent of section 275 must be
fairly assessed.

**Understanding Section 275(A) And Applying Section 10 To It.**

The text of section 275(a) does not help explain why the RBOCs are
banned from the alarm monitoring business for five years. The conference
report and most floor statements, while attempting to explain the scope
of the grandfathering provision that applies to Ameritech, does not
discuss [why]{.underline} the growth of Ameritech\'s alarm business is
restricted in certain ways. *See* S. Conf. Rep. 230, 104th Cong., 2nd
Sess. 348-50 (1996); *see also* *Alarm Industry Communications Comm. v.
FCC*, 131 F.3d 1066, 1071 (D.C. Cir. 1997). However, when you go back a
little further to try to figure out how Congress was going to handle
things that grew out of the line of business restrictions originally
imposed by the MFJ, you discover two principal concerns: (1) concern
that the incumbent could leverage its control over the \"local
bottleneck\" telephone infrastructure to gain a competitive advantage in
providing alarm monitoring services; and (2) concern by the \"small
business dominated alarm industry\" that big companies like the RBOCs
will harm competition and upset the \"level playing field.\" *See* H.R.
Rep. No. 204(i), 104th Cong., 1st Sess. 237-38 (1995); *see also* 141
Cong. Rec. S8355-56 (June 14, 1995) (statement by Senator Harkin).

Then, when one faithfully applies the prongs of section 10, it is
difficult to conclude that section 275(a)(1) is necessary to ensure just
and reasonable, nondiscriminatory rates, or (2) is necessary to protect
consumers from harm, or (3) that it is inconsistent with the public
interest to forebear, unless we want to, with full disclosure, continue
the \"public interest,\" as Senator Harkin saw it, in protecting this
competitive \"small business\" industry. We must also ask ourselves
whether there are other alternatives that could shape the implementation
of section 275(a) in a way that best matches competitive and regulatory
realities of the day. For example, we should have explored relief for
Ameritech that is prospective only so that any alleged section 275
violations could be adjudicated and proper sanctions could be imposed
for such violations (if found). Also, we should have explored
out-of-region relief, which would address the Congress\' and the alarm
industry\'s concerns about bottleneck facilities. This approach would
also show that section 10 does in fact contain limiting principles and
can be applied in a way to avoid alleged unconstitutional delegation
problems.

If we had conducted a proper section 10 analysis, I think it might have
proved sufficiently persuasive to grant, at least in part, the petition.
Perhaps the majority would not have so found. But they must, I believe,
reach that conclusion only after a full and faithful application of the
standards set forth by Congress, which they have failed to do here.
Moreover, I am disheartened by the degree to which we express reluctance
to employ broad grants for deregulatory purposes, but express little
concern when such grants are invoked for adoption or extension of new
rules. For these reasons, I respectfully dissent.

[^1]: ^?^ In a public notice released May 20, 1998, the Common Carrier
    Bureau\'s Policy and Program Planning Division invited comment on
    Ameritech\'s petition. *Pleading Cycle Established for Comments on
    Ameritech\'s Petition for Forbearance from Enforcement of Section
    275(a)*, CC Docket No. 98-65, 13 FCC Rcd 10303 (Policy & Program
    Planning Div., Com. Car. Bur., 1998). The Alarm Industry
    Communications Committee (AICC) and AT&T Corp. (AT&T) filed comments
    opposing the petition, and Ameritech replied. On April 15, 1999,
    pursuant to section 10(c) of the Communications Act, 47 U.S.C. §
    160(c), the Bureau extended until August 11, 1999, the date on which
    Ameritech\'s petition for forbearance shall be deemed granted in the
    absence of a Commission decision that the petition fails to meet the
    requirements for forbearance in section 10(a) of the Act. *Petition
    of Ameritech Corporation for Forbearance from Enforcement of Section
    275(a) of the Communications Act of 1934, As Amended*, CC Docket No.
    98-65, DA 99-716 (Com. Car. Bur., Apr. 15, 1999).

[^2]: ^?.^ 47 U.S.C. § 275(e)(1).

[^3]: ^?^ 47 U.S.C. § 275(e)(2).

[^4]: ^?^ 47 U.S.C. § 275.

[^5]: ^?^ Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
    56, *codified at* 47 U.S.C. §§ 151, *et seq.*

[^6]: ^?^ 47 U.S.C. § 275(a)(1); *see* 47 U.S.C. § 275(a)(2). That date
    is February 8, 2001.

[^7]: ^?^ 47 U.S.C. § 275(a)(2).

[^8]: ^?^ *Id.*

[^9]: ^?^ *Implementation of the Telecommunications Act of 1996:
    Telemessaging, Electronic Publishing, and Alarm Monitoring
    Services*, Second Report and Order, CC Docket No. 96‑152, 12 FCC Rcd
    3824, 3839, ¶ 33 (1997) (*Alarm Monitoring Order*), *recons.
    pending*, *aff\'d sub nom., BellSouth Corp. v. FCC*, 144 F.3d 58
    (D.C.Cir. 1998), *cert. denied,* 119 S.Ct. 1495 (1999).

[^10]: ^?^ *Enforcement of Section 275(a)(2) of the Communications Act
    of 1934, as amended by the Telecommunications Act of 1996, against
    Ameritech Corporation*, Memorandum Opinion and Order, 12 FCC Rcd
    3855 (1997), *vacated and remanded sub nom., Alarm Industry
    Communications Committee v. FCC*, 131 F.3d 1066 (D.C. Cir. 1997)
    (*AICC v. FCC*).

[^11]: ^?^ *AICC v. FCC*, 131 F.3d at 1071.

[^12]: ^?^ *Enforcement of Section 275(a)(2) of the Communications Act
    of 1934, As Amended by the Telecommunications Act of 1996, against
    Ameritech Corporation*, Memorandum Opinion and Order on Remand and
    Order to Show Cause, 13 FCC Rcd 19046, 19056-60, ¶¶ 19-29 (1998)
    *(Ameritech Circuit City Show Cause Order*).

[^13]: ^?^ *Enforcement of Section 275(a)(2) of the Communications Act
    of 1934, As Amended by the Telecommunications Act of 1996, against
    Ameritech Corporation*, Memorandum Opinion and Order and Order to
    Show Cause, 13 FCC Rcd 15053, 15067-72, ¶¶ 24-32 (1998) (*Ameritech
    Central Control Show Cause Order*).

[^14]: ^?^ *See Pleading Cycle Established for Comments on Alarm
    Monitoring Communications Committee Fourth Emergency Motion for
    Orders to Show Cause and To Cease and Desist*, Public Notice, 12 FCC
    Rcd 16428 (Policy & Program Planning Div., Com. Car. Bur., 1997).

[^15]: ^?^ 47 U.S.C. § 160(a).

[^16]: ^?^ 47 U.S.C. § 160(b).

[^17]: ^?^ *Id.*

[^18]: ^?.^ *Policy and Rules Concerning the Interstate Interexchange
    Marketplace*, CC Docket No. 96‑61, Memorandum Opinion and Order, 14
    FCC Rcd 391, 405, ¶ 31 (1998) (*CMRS Forbearance Order*).

[^19]: ^?^ AICC Comments at 19; AT&T Comments at 7.

[^20]: ^?^ Ameritech Petition at 5; *see also* AICC Comments at 5. We
    note that the House bill would have restricted entry for four years
    from that date, while the Senate bill would have restricted entry
    for six years from the date of enactment. Joint Statement of
    Managers, S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess., 156-57
    (1996) (*Joint Explanatory Statement*).

[^21]: ^?^ Ameritech Petition at 3-5, 10-27; *see also* AICC Comments at
    1-2; AT&T Comments at 5.

[^22]: ^?^ Although the Commission has acted to extend the section 10
    deadline without establishing criteria for its decision, one cannot
    infer from this action that the statutory basis for this extension
    identified in section 10 is meaningless, and that the Bureau may
    extend the deadline without even consulting the Commission.

[^23]: 1\. ? *See* *Policy and Rules Concerning the Interstate
    Interexchange Marketplace*, CC Docket No. 96‑61, Memorandum Opinion
    and Order, 14 FCC Rcd 391 (1998). The item fails to note that, even
    if this is the burden placed on proponents of forbearance, this
    principle was established in a Commission Order released more than
    seven months after Ameritech filed its petition. Ameritech would not
    have had a clue that this is what its petition needed to show. The
    item also fails to note that the Order is subject to judicial appeal
    and petitions for reconsideration.

    As I have asserted in prior statements, the language of section 10
    places on the FCC a greater burden to demonstrate that all three
    prongs of the forbearance test are or are not satisfied, whether it
    be a rule or a statutory provision.? ? *See Memorandum Opinion and
    Order and Notice of Proposed Rulemaking*, Personal Communications
    Industry Association\'s Broadband Personal Communications Services
    Alliance\'s Petition For Forbearance For Broadband Personal
    Communications Services, 13 FCC Rcd 16857 (1998) (Statement of
    Commissioner Powell, dissenting in part). The majority apparently
    now believes that it can summarily dismiss forbearance petitions,
    with mere passing reference to only one of the congressionally
    mandated prongs of analysis. It makes no effort to explain the
    benefits of section 275(a). Instead, the majority ignores the public
    interest benefits of forbearance asserted by Ameritech, fails to
    balance them against the purpose of section 275(a) [and]{.underline}
    invents a new public interest principle.? 1. ? Nor does the item
    really address what the intended benefits of the alarm monitoring
    prohibition were. I will address this below. I note further that the
    item makes no attempt whatsoever to carry out the mandate of section
    10(b) considering whether forbearance will promote competitive
    market conditions, including the extent to which forbearance will
    enhance competition among providers of telecommunications services.

[^24]: ? *See* Order at ¶ 9; *see also* Comments of the Alarm Industry
    Communications Committee (AICC) at 5-8. A concern about the short
    time left in the life of this statutory provision also would have
    led me to question why we would grant such relief if it was coming
    relatively soon through operation of the sunset. However, I must
    point out that when Ameritech filed its petition, May 13, 1998, it
    was less than half-way through the life of section 275(a). A year
    plus 90 days later we are telling Ameritech to wait it out until
    February 2001. This remaining time period in a highly competitive
    industry like alarm monitoring is an eternity to companies seeking
    to grow their business and provide their public shareholders
    sustained value in a volatile market.

[^25]: ? *See cf.* Department of Justice Appropriation Authorization
    Act, Fiscal Year 1980, Pub. L. No. 96-132, §21(a) 93 Stat. 1049
    (requiring Attorney General to report to each House of Congress a
    determination that the Department of Justice "will refrain from
    defending any provision of law enacted by Congress . . . because of
    the position of the Department that such provision is not
    constitutional"). Congress appears to have been clear that it
    generally expects the constitutionality of its laws to be defended,
    such that it may require notification from agencies if they do not
    intend to meet this expectation.

[^26]: ? *J.W.Hampton, Jr., & Co. v. United States*, 276 U.S. 394, 409
    (1928). But for a recent case in the D.C. Circuit released after
    AICC filed its comments (*see American Trucking Ass\'n, Inc. v.
    EPA*, 175 F.3d 1027 (D.C. Cir. 1999)), the courts have generally
    avoided striking down acts of Congress or their implementation by
    administrative agencies under the non-delegation doctrine. *See
    Mistretta v. United States*, 488 U.S. 361, 372 (1989) (there is \"a
    practical understanding that in our increasingly complex society,
    replete with ever changing and more technical problems, Congress
    simply cannot do its job absent an ability to delegate power under
    broad general directives.\"); *see also id.* at 416 (Scalia, J.
    dissenting and noting that the Supreme Court has \"almost never felt
    qualified to second-guess Congress regarding the permissible degree
    of policy judgment that can be left to those executing or applying
    the law.\") In fact, the Court has held in only two cases that a
    statue amounted to an unconstitutional delegation of legislative
    authority, and this was over fifty years ago. *See Panama Refining
    Co. v. Ryan*, 293 U.S. 388 (1935) (holding that a provision of the
    National Industrial Recovery Act was an unconstitutional delegation
    because it allowed the President to exercise unfettered discretion
    to determine policy as to the transportation of excess oil; the
    statute failed to articulate a proper standard to govern the
    President\'s actions).

    In the other case from 1935, which AICC cites, *A.L.A. Schechter
    Poultry Corp. v. United States*, 295 U.S. 495 (1935), the Court held
    that another provision of the National Industrial Recovery Act was
    unconstitutional because it once again provided the President with
    the ability to legislate without proper congressional guidance or an
    \"intelligible principle.\" In *Schechter*, the President approved
    codes of fair competition that were developed by the industry.
    Congress had no part in the development of these codes, which had
    the force of law. The Court faulted this code-making process for
    creating a private delegation where an industry was, in essence,
    making law. I read *Schechter* as generally standing for the
    proposition that Congress may not delegate unfettered lawmaking
    authority to private parties, which section 10 of the Communications
    Act surely does not do.

    AICC also cites *Loving v. United States*, 517 U.S. 748 (1996),
    which repeats the general rule that Congress must also \"lay down by
    legislative act an intelligible principle to which the person or
    body authorized to \[act\] is directed to conform.\" *Id*. at 771
    (quoting *J.W. Hampton*, 276 U.S. at 409). The Court in *Loving*
    said that \"the intelligible-principle rule seeks to enforce the
    understanding that Congress may not delegate the power to make laws
    and so may delegate no more than the authority to make policies and
    rules that implement its statutes. *Id*. (citation omitted); s*ee
    also* AICC comments at n.4. However, in that case cited by AICC, the
    Court upheld the alleged delegation under the intelligible-principle
    rule, noting further that, since 1935, it has upheld, without
    exception, delegations under standards phrased in \"sweeping
    terms.\" *Id*. (citing *National Broadcasting Co. v. United States*,
    319 U.S. 190 (1943) (upholding delegation to the Federal
    Communications Commission to regulate radio broadcasting according
    to \"public interest, convenience, or necessity\")).

[^27]: ? *See* *Bell Operating Companies Petitions for Forbearance from
    the Application of Section 272 of the Communications Act of 1934, As
    Amended, to Certain Activities*, CC Docket No. 96-149, Memorandum
    Opinion and Order, 13 FCC Rcd 2627 (1998). In the Order, the Common
    Carrier Bureau granted the petitions of BellSouth and other Bell
    Operating Companies, pursuant to section 10 of the Communications
    Act, for forbearance from the application of the separate affiliate
    requirements of section 272 to their E911 services and to
    BellSouth\'s reverse search directory assistance services.

[^28]: ? *See Nevada Bell, Pacific Bell and Southwestern Bell Telephone
    Company Petition for Forbearance from the Application of Section 272
    of the Communications Act of 1934, As Amended, to Reverse Search
    Services,* CC Docket No. 98-193, Memorandum Opinion and Order, 1999
    WL 198878 (Apr. 9, 1999). In the Order, the Common Carrier Bureau
    granted the petitions of Nevada Bell, Pacific Bell, and Southwestern
    Bell Telephone Companies for forbearance from the application of
    section 272 of the Communications Act of 1934, as amended, to their
    electronic reverse directory services.