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 Federal  Communications  Commission  FCC  05-  183 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS, 
 CONCURRING 
 Re:  SBC  Communications  Inc.  and  AT&  T  Corp.  Applications  for  Approval  of  Transfer  of  Control,  Memorandum  Opinion  and  Order,  WC  Docket  No.  05-  65  (Concurring) 

 The  mergers  before  us  are  about  more  than  the  union  of  this  countrys  largest  telecommunications  carriers.  They  are  about  consumers  phone  bills,  the  availability  of  competitive  broadband  options  and 
 the  future  of  the  Internet.  But  in  a  sense,  these  mergers  can  also  be  seen  as  an  epitaph  for  the  competition  that  many  of  us  thought  we  would  enjoy  as  a  result  of  the  Telecommunications  Act  of  1996.  That 
 legislation,  I  am  convinced,  envisioned  a  vastly  different  communications  landscape  than  the  one  we  find  ourselves  living  in  today. 

 If  you  seek  the  reason  why  we  havent  arrived  at  that  happy  valley  of  competition  rife  with  consumer  benefits,  you  can  start  with  the  misdirected  policies  of  the  FCC  over  the  last  several  years.  On 
 too  many  fronts,  the  Commission  put  the  spear  to  the  pro-  competitive  policies  of  the  Telecommunications  Act  of  1996.  It  put  intra-  modal  competition  for  the  residential  market  pretty  much  beyond  reach  for  new 
 entrant  carriers  and  then  proceeded  to  inhibit  enterprise  competition,  too.  We  turned  our  eyes  away  when  enforcement  was  needed  to  keep  bottleneck  facilities  open.  And  all  the  while  we  kept  singing  confidently 
 Dont  Worry,  Be  Happy  inter-  modal  competition  is  going  to  save  us  with  all  its  new  options.  Maybe,  but  then  again  maybe  not  were  still  waiting.  I  think  we  ought  to  be  concerned.  Thanks  in  part  to  our 
 actions,  the  wireline  market  became  increasingly  the  province  of  the  few.  More  than  half  of  the  wireless  market  came  under  the  control  of  incumbent  wireline  providers.  New  services  like  VoIP  have  been  held 
 back  by  the  high  cost  of  broadband  in  this  country.  And  now  the  Internet  backbone  seems  headed  in  the  same  direction  of  control  by  a  favored  few. 

 This  state  of  affairs  is  not  of  my  making  or  choosing.  The  record  shows  that  I  objected  vociferously  to  many  of  these  changes.  I  would  have  chosen  a  very  different  path  than  the  one  we  travel 
 today.  But  in  the  end,  we  are  charged  with  considering  these  mergers  in  the  context  of  the  world  that  is,  not  the  one  that  might  have  been. 

 In  this  environment,  I  believe  my  responsibility  is  to  identify  and  fight  for  what  we  can  preserve,  so  that  American  consumers  can  still  enjoy  some  competition  in  telecom  services;  that  business 
 customers,  too,  can  benefit  from  competitive  rates  and  innovative  service  choices  and  lower  prices;  and  that,  when  it  comes  to  the  Internet,  we  can  all  go  where  we  want  to  go  and  do  what  we  want  to  do  with 
 this  dynamic  tool  that  is  so  critical  to  our  nations  future.  These  things  are  all  clearly  in  the  public  interest. 

 The  Order  the  Commission  adopts  today  falls  far  short  of  ideal.  Maybe  a  better  way  to  put  it  on  this  Halloween  Day  is  to  say:  Its  not  a  trick  or  much  of  a  treat,  but  its  all  you  get  if  you  come  knocking 
 at  the  Commissions  door  today.  Yet,  clearly,  this  is  better  than  approving  these  mergers  without  any  conditions.  There  have  been  difficult  discussions  here  in  recent  days,  but  they  have  been  substantive, 
 productive  and  fair.  And  while  I  wish  I  could  have  been  more  persuasive  on  a  number  of  issues,  we  should  keep  in  mind  that  this  outcome  is  far  from  a  rubber  stamp  approval  of  the  item  we  received.  I 
 would  not  could  not  support  an  unconditioned  approach.  Would  I  have  preferred  to  do  more?  Yes.  Am  I  entirely  satisfied?  No.  But  this  Order  is  now  conditioned  on  provisions  designed  to  address 
 numerous  possible  harms  to  competition  and  to  consumers,  as  well  as  to  protect  the  openness  and  innovation  that  must  always  characterize  the  Internet. 
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 for  phone  calls  or  swapping  video  files.  The  more  powerful  and  concentrated  our  facilities  providers  grow,  the  more  they  have  the  ability,  and  perhaps  even  the  incentive,  to  close  off  Internet  lanes  and  block 
 IP  byways.  Im  not  saying  this  is  part  of  their  business  plans  today;  I  am  saying  we  create  the  power  to  inflict  such  harms  only  at  great  risk  to  consumers,  innovation  and  our  nations  competitive  posture. 
 Because,  in  practice,  such  stratagems  can  mean  filtering  technologies  that  restrict  use  of  Internet-  calling  services  or  that  make  it  difficult  to  watch  videos  or  listen  to  music  over  the  web.  The  conditions  we  adopt 
 today  speak  directly  to  this  issue  before  increased  concentration  of  last  mile  facilities  and  the  Internet  backbone  make  it  intractable.  This  is  why  stand-  alone  DSL,  enforceable  net  neutrality  principles,  and 
 peering  in  the  Internet  backbone  are  so  vital. 
 I  also  am  pleased  that  these  conditions  now  express  a  measure  of  concern  for  the  effects  of  these  mergers  on  competitive  wireline  providers.  Competitive  carriers  will  benefit  from  the  reforms  we  put  in 
 place  for  special  access  and  UNEs.  This  will  provide  at  least  some  latitude  for  competitive  players  trying  to  crack  open  an  increasingly  concentrated  marketplace.  We  need  active  and  engaged  competitive 
 carriers  to  keep  rates  low.  This  is  especially  important  for  small  business  customers. 
 In  addition,  this  Order  takes  a  cautious  view  of  the  impact  of  these  mergers  on  rural  America.  We  share  a  concern  that  the  mergers  not  be  allowed  to  jeopardize  interconnection  for  small  and  rural 
 providers.  To  this  end,  the  Commission  commits  to  monitoring  the  situation  on  an  ongoing  basis.  This  is  important  because  the  wrong  policies  here  could  actually  put  rural  America  at  further  disadvantage 
 compared  to  the  rest  of  the  country.  I,  for  one,  will  be  vigilant  in  making  sure  this  never  happens. 
 Looking  beyond  the  transaction  before  us,  it  is  obvious  that  the  whole  telecommunications  landscape  continues  to  change  dramatically.  But  despite  all  of  the  advances  in  technology  and  efficiency 
 over  the  last  decade,  local  phone  rates  have  failed  to  decline.  Household  phone  penetration  is  at  the  lowest  rate  in  17  years.  Surely  being  16  th  in  the  world  in  broadband  penetration  is  nothing  to  crow  to 
 about.  And,  yes,  we  still  have  enormous  digital  gaps  from  the  inner  city  to  the  rural  village,  and  there  is  a  real  threat  that  current  policies  may  widen  rather  than  close  those  gaps.  So  there  are  already  ample 
 warning  signs  something  is  not  right.  And  it  is  long  past  time  for  the  Commission  to  pay  heed. 
 It  may  be  that  we  can  address  all  these  concerns  in  a  big  carrier  environment.  Conversely,  it  may  be  that  we  are  tacking  back  in  time  toward  an  era  when  concentrated  power  dictated  what  limited  services 
 we  could  and  could  not  have  and  we  had  no  recourse  but  to  accept  what  was  offered.  In  any  case,  I  am  mindful  that  there  are  large  and  portentous  questions  here  and  that  their  ultimate  resolutions  often  range 
 beyond  the  boundaries  of  FCC  jurisdiction.  The  Commission  important  as  its  work  is  does  not  design  the  legal  landscape  for  telecommunications.  Congress  is  looking  at  these  issues  and  will  hopefully  be 
 updating  our  telecommunications  statute  in  the  months  or  year  ahead  and  there  is  no  substitute  for  that  kind  of  guidance.  I  also  believe  we  need  some  real  national  dialogue  on  these  issues  regarding  consumer 
 rights,  Internet  openness,  broadband  deployment  and  many  more.  I  think  we  will  find  the  American  people  more  than  happy  to  engage  such  a  discussion.  They  understand  that  how  these  issues  are  decided 
 is  important  to  them.  The  bottom  line  here  is  that  these  issues  are  vitally  important  to  the  future  of  our  country.  Telecommunications  are  going  to  be  a  major  driver  of  our  economy  in  this  new  century.  We 
 just  have  to  get  the  legal  and  regulatory  landscape  right.  If  we  get  it  wrong,  American  consumers  will  pay  and  so  will  American  technology,  innovation  and  entrepreneurship.  No  less  than  our  global 
 competitiveness  in  the  new  information  age  is  at  stake. 
 Above  all,  we  must  have  some  humility  about  what  we  do.  There  are  honest  disagreements  over  these  issues  and  I  dont  believe  that  any  one  of  us  has  it  all  figured  out.  So  we  have  to  be  always  open  to 
 new  facts  and  always  follow  up  on  the  real-  world  consequences  of  our  actions.  If  rates  go  up  for  residential  and  business  users  as  a  result  of  our  decision  today,  if  our  broadband  penetration  rates  fall 
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 further  in  comparison  with  what  other  countries  with  different  policies  are  experiencing,  and  if  consumers  find  that  their  Internet  freedom  is  being  shackled  by  monopoly  or  duopoly  control,  then  we  have  a  clear 
 and  pressing  duty  to  revisit  what  we  have  done.  So  we  need  to  put  as  much  or  more  effort  and  resources  into  monitoring  the  consequences  of  our  actions  as  we  do  in  bringing  them  forward  for  a  vote.  I  have 
 worked  in  this  proceeding  to  protect  against  injurious  consequences,  as  best  I  can  under  the  circumstances,  and  while  I  would  have  liked  more,  I  will  concur  in  these  Orders  and  pledge  my  close 
 attention  to  their  unfolding  consequences. 
 We  at  this  table  are  all  indebted  to  the  work  of  the  Bureau  and  to  the  tireless  dedication  of  our  personal  staffs  as  these  items  matured  and  particularly  their  often  heroic  efforts  over  the  past  week.  For 
 my  part  I  want  to  extend  my  appreciation  and  admiration  to  Jessica  Rosenworcel.  Her  tenacity  and  creativity  through  all  of  this  have  been  an  inspiration. 
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