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 SEPARATE  STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Review  of  Regulatory  Requirements  for  Incumbent  LEC  Broadband 
 Telecommunications  Services  et  al.,  CC  Docket  No.  01-  337  et  al. 

 Re:  Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange 
 Carriers  et  al.,  CC  Docket  Nos.  01-  339  et  al. 

 In  this  combined  statement,  I  write  separately  to  underscore  my  support  for  these 
 two  Notices  of  Proposed  Rulemaking,  which  comprise  the  second  and  third  in  a  series  of 
 notices  the  Commission  recently  announced  that  will  begin  Phase  II  of  our  local 
 competition  implementation  and  enforcement  efforts  under  the  1996  Act.  1 

 Review  of  Regulatory  Requirements  for  Incumbent  LEC  Broadband  Telecommunications  Services 

 I  vigorously  support  the  Notice  we  hereby  adopt  that  initiates  a  review  of  the 
 regulatory  requirements  applicable  to  incumbent  LEC  provision  of  high-  speed 
 telecommunications  services.  In  this  proceeding,  the  Commission  will  ask  whether 
 potentially  robust  competition  among  multiple  types  of  broadband  service  providers 
 suggests  that  we  should  avoid  subjecting  incumbents  to  the  same  regulatory  burdens  that 
 we  impose  on  these  carriers  with  respect  to  their  provision  of  local  telephone  service. 
 That  is,  we  ask  whether  incumbent  LECs,  which  are  so  clearly  dominant  in  the  provision 
 of  local  phone  service,  must  also  be  treated  as  dominant  as  they  use  DSL  and  other 
 technologies  to  provide  high-  speed  telecommunications  services  in  competition  with 
 cable  modem  service  providers  and  other  types  of  platforms.  I  would  point  out  that  this 
 item  focuses  on  traditional  Title  II  common  carrier  regulation,  historically  arising  out  of 
 the  section  201  and  202  of  the  Communications  Act  of  1934,  as  applied  to  incumbent 
 LEC  provision  of  high-  speed  telecommunications  services.  In  contrast,  the 
 aforementioned  proceeding  regarding  regulation  of  incumbent  LEC  broadband 
 information  services  will  address  the  question  whether  Title  I  should  apply  when 
 incumbent  LECs  provide  a  bundled  high-  speed  information  service  offering. 

 I  would  emphasize  that  our  initiation  of  this  proceeding  should  not  suggest  a 
 grand  departure  from  our  ongoing  efforts  to  implement  unbundling,  collocation  and  other 
 market-  opening  requirements  with  respect  to  incumbent  LECs  pursuant  to  section 
 251(  c)(  3)  of  the  Act.  These  other  requirements  are  intended  to  allow  competing  carriers, 
 particularly  facilities-  based  carriers,  to  provide  new  and  innovative  telecommunications 

 1  The  first  of  these  items  was  the  Notice  of  Proposed  Rulemaking  regarding  performance 
 requirements  for  UNE  provisioning  that  we  adopted  at  the  November  agenda  meeting.  [cite]  In  addition  to 
 that  Notice  and  the  two  items  captioned  above,  we  will  in  the  coming  weeks  seek  comment  on  the 
 appropriate  regulatory  framework  for  incumbent  LEC  provision  of  broadband  information  services. 
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 services.  By  the  express  terms  of  the  statute,  the  Commission  is  duty-  bound  to  continue 
 our  implementation  and  enforcement  of  these  provisions,  and  we  will. 

 Rather,  this  Notice  of  Proposed  Rulemaking  is  intended  to  develop  further  one 
 more  avenue  of  thinking  about  how  regulation  can  serve  to  help  (or  hinder)  broadband 
 deployment.  It  is,  in  that  sense,  not  a  signpost  heralding  a  new  direction  but  an  attempt  to 
 add  yet  another  arrow  to  the  regulatory  quiver  we  will  use  to  attack  and,  in  conjunction 
 with  other  forces  outside  our  purview,  eventually  subdue  the  broadband  beast. 

 Notwithstanding  my  enthusiasm  for  our  decision  to  initiate  this  inquiry,  I  for  one 
 have  an  open  mind  as  to  how  these  questions  should  be  answered.  For  example,  it  may 
 prove  too  unwieldy  for  both  carriers  and  the  Commission  to  treat  incumbents  as  dominant 
 for  their  provision  of  tradit  ional  local  service  but  non-  dominant  for  their  provision  of 
 high-  speed  telecommunications  services.  I  also  acknowledge  that  declaring  incumbent 
 LEC  provision  of  broadband  telecommunications  services  non-  dominant  could  have 
 consequences  in  other  areas  of  regulation  that  the  Commission  has  not  yet  fully 
 anticipated.  Yet  the  importance  of  broadband  deployment  to  the  public  interest  and 
 welfare  is  too  great  to  disregard  any  potential  method  of  facilitating  that  deployment.  In 
 sum,  we  must  ensure  that  we  leave  no  stone  unturned  in  our  pursuit  of  this  important 
 goal. 

 Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers 

 I  similarly  and  wholeheartedly  support  the  Notice  we  adopt  here  that  initiates  our 
 scheduled  triennial  review  of  UNE  obligations  imposed  on  incumbent  LECs  pursuant  to 
 sections  251(  c)(  3)  and  251(  d)(  2).  Taking  our  cues  from  the  Supreme  Court  in  its  opinion 
 remanding  to  the  Commission  the  task  of  giving  meaningful  effect  to  these  provisions, 
 my  former  colleagues  and  I  determined  that  the  agency  would,  in  three  years,  revisit  its 
 decisions  regarding  the  availability  of  UNEs.  2  The  purpose  of  this  triennial  review  would 
 be  to  keep  those  decisions  current  with  ongoing  market  and  regulatory  developments. 
 That  was  in  1999,  and  now  the  year  2002  fast  approaches. 

 Not  surprisingly,  however,  I  support  this  item  for  reasons  other  than  the  fact  that  it 
 will  put  the  Commission  in  a  position  to  deliver  on  the  commitment  it  made  in  1999. 
 First,  it  underscores  the  Commissions  ongoing  commitment  to  the  promotion  of 
 facilities-  based  competition,  which  was  pronounced  most  clearly  by  my  former 
 colleagues  and  I  in  the  1999  UNE  Remand  Order.  3  I  believe  this  commitment  should 
 focus,  in  particular,  on  both  so-  called  full  facilities-  based  competition  and  competition 
 from  newer  entrants  who  supplement  their  own  facilities  with  network  elements  leased 
 from  the  incumbent.  As  I  have  demonstrated  in  my  decisions  and  public  statements  over 

 2  Implementation  of  the  Local  Competition  Provisions  of  the  Telecommunications  Act  of  1996, 
 Third  Report  and  Order  and  Fourth  Further  Notice  of  Proposed  Rulemaking,  15  FCC  Rcd  3696  (1999) 
 (  UNE  Remand  Order),    151.  3 
 UNE  Remand  Order,    14. 
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 my  four  years  at  the  Commission,  I  fully  support  the  use  of  facilities  and  individual 
 UNEs  as  means  to  promote  local  compet  it  ion  while  simultaneously  furthering  the  related 
 goals  of  encouraging  deregulation  and  innovation.  The  1996  Act  and  our  experience 
 since  its  passage  demand  no  less. 

 Second,  I  support  this  item  because  it  emphasizes  further  an  area  of  inquiry  begun 
 in  the  UNE  Remand  Order.  Specifically,  in  that  Order,  we  considered  how  the  Acts 
 goals  of  encouraging  broadband  deployment  and  investment  in  competing  facilities 
 should  shape  unbundling  policy.  4  I  support  our  decision  here  to  continue  and  to  expand 
 this  area  of  inquiry. 

 Third,  I  support  the  Commissions  decision,  in  seeking  comment  here  on  whether 
 to  unbundle  aspects  of  the  incumbents  network,  to  ask  whether  and  the  extent  to  which 
 we  should  take  note  of  the  availability  of  technologies  other  than  circuit-  switched 
 telephony  provided  by  tradit  ional  common  carriers.  In  particular,  this  Notice  expressly 
 focuses  on  the  roles  that  cable  and  wireless  companies  have  begun  and  will  continue  to 
 play  in  the  market  for  telephony  and  broadband  telecommunications  services.  This 
 emphasis  may  also  be  viewed  as  expansion  of  an  avenue  of  inquiry  begun  by  the  previous 
 Commission.  Specifically,  in  the  UNE  Remand  Order,  my  former  colleagues  and  I 
 appropriately  followed  the  Supreme  Courts  demand  that  we  not  blind  ourselves  to  the 
 availability  of  self-  provisioned  or  other  alternative  facilities  in  determining  whether  to 
 unbundle  elements  of  the  incumbent  LECs  network.  5 

 To  my  mind,  it  seems  premature  to  suggest  that  the  availability  of  such 
 technologies  should  be  fully  dispositive  of  the  question  whether  to  require  the  availability 
 of  specific  UNEs.  Yet  it  does  stand  to  reason  that  such  availability  may  give  us  some 
 indication  of  the  alternative  tools  newer  entrants  could  use  to  serve  customers  if  the 
 Commission  were  to  decline  to  unbundle  any  particular  element  of  the  network.  I 
 encourage  parties  to  provide  detailed  and  well-  supported  comments  in  order  to  help  us 
 determine  whether  this  line  of  reasoning  is,  in  fact,  sound. 

 As  this  Notice  itself  reminds  us,  the  Commission  now  has  the  benefit  of  two  years 
 of  experience  with  the  current  unbundling  rules  and  almost  six  years  of  experience  with 
 promoting  competition  since  the  1996  Act  was  passed.  These  are  no  doubt  merely  the 
 opening  chapters  of  a  regulatory  epic  that  will  take  many  years  to  rewrite  a  near  century-long 
 history  of  legally  sanctioned  monopoly  in  the  telephone  market.  But  I  believe  it  is 
 critical  that  we  take  stock  of  the  lessons  we  have  learned  so  far  and  make  any  changes 
 that  may  be  necessary  to  ensure  that  our  rules  remain  faithful  to  the  statute  and  its  goals 
 of  promoting  competition,  deregulation  and  innovation  in  telecommunications  markets. 

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 I  thank  the  Common  Carrier  Bureau  staff  and  my  colleagues  for  their  enormous 
 work  on  these  Notices  and  look  forward  to  working  with  them,  as  well  as  my  state 
 commission  colleagues,  in  carrying  out  both  of  these  important  Phase  II  proceedings. 

 4  UNE  Remand  Order,    107-  113. 
 5  UNE  Remand  Order,    8. 
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