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 DISSENTING  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 Re:  Petition  for  Forbearance  of  the  Verizon  Telephone  Companies  Pursuant  to  47  U.  S.  C.    160(  c),  SBC  Communications  Inc.  s  Petition  for  Forbearance  Under  47 
 U.  S.  C.    160(  c),  Qwest  Communications  International  Inc.  Petition  for  Forbearance  Under  47  U.  S.  C.    160(  c),  BellSouth  Telecommunications,  Inc. 
 Petition  for  Forbearance  Under  47  U.  S.  C.    160(  c),  Memorandum  Opinion  and  Order  (WC  Docket  Nos.  01-  338,  03-  235,  03-  260  &  04-  48) 

 The  mismatch  between  the  Commissions  broadband  rhetoric  and  reality  reaches  new  heights  with  todays  decision.  The  reality  is  that  the  International 
 Telecommunications  Union  reports  that  the  United  States  is  now  thirteenth  in  the  world  in  broadband  penetration.  This  is  a  fall  even  from  our  sobering  perch  at  eleven  that  the 
 Commission  reported  just  a  few  months  ago.  Its  an  ominous  trend  when  we  recall  that  just  two-  and-  a-  half  years  ago  the  Commission  reported  that  the  United  States  ranked 
 number  four  in  the  world  in  broadband  penetration. 
 While  the  country  experiences  broadband  freefall,  the  Commission  has  embarked  on  a  policy  of  closing  off  competitive  access  to  last  mile  bottleneck  facilities.  In  the 
 Triennial  Review,  the  majority  restricted  access  to  fiber-  to-  the-  home  loops.  Last  summer,  the  majority  extended  this  exemption  from  competition  to  facilities  serving  primarily 
 residential  buildings,  an  action  that  clouded  the  line  between  mass  market  and  small  business  customers.  The  result:  millions  of  small  businesses  located  in  buildings  where 
 there  are  also  residential  units  are  shut  off  from  the  benefits  of  having  competitive  broadband  options.  Last  week  brought  another  onslaught  when  the  majority  insulated 
 fiber-  to-  the-  curb  architectures  from  competition.  This  action  further  restricted  broadband  choice  for  residential  consumers  and  further  tightened  the  noose  on  small  businesses 
 seeking  competitive  broadband  services. 
 Today,  the  majority  pounds  another  nail  into  the  coffin  it  is  building  for  competition.  In  all  prior  decisions,  the  majority  used  Section  251  to  restrict  access  to  last 
 mile  facilities.  But  to  ensure  at  least  the  possibility  of  access  and  the  possibility  of  competition  even  though  it  might  be  at  higher  prices  the  Commission  unanimously 
 required  continued  access  to  these  facilities  under  the  less  stringent  requirements  of  Section  271.  In  USTA  II,  the  D.  C.  Circuit  upheld  this  approach.  But  in  todays  decision, 
 the  majority  casts  aside  the  courts  holding  and  moves  on  to  slash  even  the  residual  bare  requirements  of  Section  271  access.  As  a  result,  there  is  now  absolutely  no  obligation  to 
 provide  competitive  access  to  any  broadband  facilities  from  fiber-  to-  the-  home  to  fiber-to-  the  curb  to  packetized  functions  of  hybrid  loops  to  packetized  switching  capabilities 
 at  just  and  reasonable  rates.  The  majority  accomplishes  this  final  feat  using  the  Commissions  Section  10  forbearance  authority  to  shut  off  any  obligation  to  provide  fair 
 access  to  last  mile  bottleneck  facilities.  In  doing  so,  they  replace  their  will  for  that  of  Congress,  finding  that  competition  is  not  required  for  just  and  reasonable  charges  or  for 
 the  protection  of  consumers.  They  conclude  that  the  public  interest  is  served  by 
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 retreating  to  a  policy  of  non-  competition  and  last  mile  monopoly  control.  I  cannot  support  such  conclusions  nor  the  underlying  analysis. 
 The  majority  attempts  to  assure  us  that  todays  action  is  part  of  an  effort  to  promote  local  competition.  They  contend  that  in  the  broadband  market  preconditions  for 
 dominance  are  not  present  because  promising  technologies  are  flooding  the  marketplace.  But  broad  rhetoric  about  the  power  of  competition  does  not  make  it  happen.  And 
 choosing  to  ignore  the  Commissions  own  data  does  not  help  the  weak  analytical  structure  on  which  this  decision  is  built. 

 The  facts  are  clear.  This  Commissions  most  recent  report  on  high-  speed  services  shows  that  the  residential  and  small  business  market  is  a  duopoly.  Our  data  show  that 
 new  satellite  and  wireless  technologies  exciting  though  they  are  together  serve  only  1.3  percent  of  this  market.  Broadband  over  powerline  does  not  yet  even  register.  Yet  the 
 majority  chooses  to  ignore  the  Commissions  statistics,  preferring  instead  sweeping  rhetoric  about  regulatory  relief  and  broadband  competition. 

 One  problem  here  is  that  the  majority  gets  so  carried  away  with  its  vision  of  the  countrys  telecom  future  that  they  act  like  it  is  already  here,  that  competition  is 
 everywhere  flourishing,  and  that  intermodal  competition  is  already  ubiquitous  reality.  But  their  cheerful  blindness  to  stubborn  market  reality  actually  pushes  farther  into  the 
 future  the  kind  of  competitive  telecom  world  they  say  they  want. 
 The  lack  of  analysis  in  this  proceeding  and  in  the  Commissions  approach  to  broadband  generally  amounts  to  a  regulatory  policy  of  crossing  our  fingers  and  hoping 
 competition  will  somehow  magically  burst  forth.  With  the  international  economy  increasingly  dependent  on  broadband  facilities,  faith-  based  approaches  to  advanced 
 telecommunications  are  insufficient.  We  cannot  afford  to  wait.  As  Business  Week  recently  made  clear:  If  the  U.  S.  is  not  to  lose  out  in  the  global  race  of  the  next-generation 
 Internet  and  the  new  businesses  it  can  spawn,  change  is  needed.  The  country  must  create  vigorous  competition  to  drive  the  low  prices  and  high  speeds  that  can  usher 
 in  a  prosperous  broadband  economy.  I  agree.  There  may  not  be  a  one-  sized-  fits-  all  competition  policy  out  there,  but  if  we  want  to  enter  the  brave  new  world  of  broadband, 
 we  need  to  move  away  from  our  current  course.  The  facts  show  we  are  headed  in  the  wrong  direction  at  warp  speed.  I  dissent. 
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