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 Federal  Communications  Commission  FCC  05-  170 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 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 
 Adopted:  September  16,  2005  Released:  December  2,  2005 
 By  the  Commission:  Chairman  Martin  issuing  a  separate  statement;  Commissioners  Copps  and  Adelstein  concurring  and  issuing  a  joint  statement. 

 TABLE  OF  CONTENTS  Para. 
 I.  INTRODUCTION  ...........................................................................................................................  1  II.  BACKGROUND  .............................................................................................................................  3 
 III.  DISCUSSION................................................................................................................................  13  A.  FORBEARANCE  STANDARD...............................................................................................  13 
 B.  DOMINANT  CARRIER  REGULATION  ..................................................................................  15  1.  Scope  of  Qwests  Petition  Subject  to  Section  10.................................................  16 
 2.  Application  of  Forbearance  Criteria  to  Qwests  Petition.....................................  18  a.  Relevant  Markets  ....................................................................................  20 
 (i)  Product  Market  ..........................................................................  20  (ii)  Geographic  Market  ....................................................................  23 
 b.  Mass  Market  Services.............................................................................  25  (i)  Section  10(  a)(  1)    Charges,  Practices,  Classifications, 
 and  Regulations  .........................................................................  26  (a)  Market  Share.................................................................  28 
 (b)  Market  Elasticities  and  Structure..................................  31  (c)  Specific  Forbearance  Granted.......................................  39 
 (ii)  Section  10(  a)(  2)    Protection  of  Consumers..............................  44  (iii)  Section  10(  a)(  3)    Public  Interest  ..............................................  46 
 c.  Enterprise  Services  .................................................................................  50  C.  FULLY  IMPLEMENTED  ...................................................................................................  51 
 1.  Section  10(  d)  As  It  Relates  to  the  Requirements  of  Section  271.........................  52  2.  Section  10(  d)  As  It  Relates  to  the  Requirements  of  Section  251(  c)  ....................  53 
 D.  FORBEARANCE  FROM  SECTION  251(  C)  REQUIREMENTS...................................................  57  1.  Unbundled  Access  to  Loops  and  Transport  .........................................................  61 
 a.  Section  10(  a)(  1)    Charges,  Practices,  Classifications,  and  Regulations  .............................................................................................  63 
 b.  Section  10(  a)(  2)    Protection  of  Consumers...........................................  73 
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 c.  Section  10(  a)(  3)    Public  Interest  ...........................................................  75  2.  Other  Requirements  of  Section  251(  c)  ................................................................  84 
 E.  FORBEARANCE  FROM  271(  C)(  2)(  B)  CHECKLIST  REQUIREMENTS.....................................  90  1.  Forbearance  Analysis...........................................................................................  92 
 a.  Checklist  Items  1,  2  &  14  (Interconnection,  UNEs  &  Resale)  ...............  93  b.  Checklist  Item  3  (Poles,  Ducts,  Conduits,  and  Rights  of  Way)  ..............  97 
 c.  Checklist  Items  4-  6  (Loops,  Transport  and  Switching)  ........................  100  (i)  Section  10(  a)(  1)    Charges,  Practices,  Classifications, 
 and  Regulations  .......................................................................  103  (ii)  Section  10(  a)(  2)    Protection  of  Consumers............................  108 
 (iii)  Section  10(  a)(  3)    Public  Interest  ............................................  109  F.  REGULATION  AS  AN  INCUMBENT  LOCAL  EXCHANGE  CARRIER  .....................................  111 
 IV.  EFFECTIVE  DATE.....................................................................................................................  112  V.  ORDERING  CLAUSES  ..............................................................................................................  113 
 APPENDIX    LIST  OF  COMMENTERS 
 I.  INTRODUCTION 
 1.  Last  year,  in  the  midst  of  intense  facilities-  based  competition  in  the  Omaha  Metropolitan  Statistical  Area  (MSA),  Qwest  Corporation  (Qwest)  filed  a  petition  for  forbearance  pursuant  to  section  10 
 of  the  Telecommunications  Act  of  1996  1  from  many  of  the  statutory  and  regulatory  obligations  that  apply  to  it  uniquely  as  the  former  monopoly  telephone  company.  2  Today,  we  grant  Qwest  substantial  relief 
 from  many  of  these  obligations,  where  the  level  of  facilities-  based  competition  ensures  that  market  forces  will  protect  the  interests  of  consumers  and  regulation  is,  therefore,  unnecessary.  Through  this  Order,  we 
 show  that  we  are  ready  and  willing  to  step  aside  as  regulators  and  let  market  forces  prevail  where  facilities-  based  competition  is  robust. 

 1  47  U.  S.  C.    160;  Telecommunications  Act  of  1996,  Pub.  L.  No.  104-  104,  110  Stat.  56  (1996).  The  1996  Act 
 amended  the  Communications  Act  of  1934,  47  U.  S.  C.    151  et  seq.  We  refer  to  both  of  these  Acts  as  the  Act.  When  we  want  unambiguously  to  refer  to  the  Telecommunications  Act  of  1996,  we  refer  to  it  as  the  1996  Act. 

 2  Qwest  seeks  forbearance  from  the  application  of  four  categories  of  regulation  in  its  service  territory  in  the  Omaha 
 MSA:  (1)  dominant  carrier  regulation;  (2)  all  section  251(  c)  obligations;  (3)  section  271(  i)-(  vi)  and  (xiv)  competitive  checklist  requirements;  and  (4)  all  other  regulations  to  which  it  is  subject  as  an  incumbent  LEC. 

 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  (filed  June  21,  2004)  (Qwest  Petition  or  Petition).  Comments  were  filed  in  this 
 proceeding  on  August  24,  2004,  and  reply  comments  were  filed  on  September  23,  2004.  See  Pleading  Cycle  Established  for  Comments  on  Qwests  Petition  for  Forbearance  in  the  Omaha  Metropolitan  Statistical  Area,  WC 
 Docket  No.  04-  223,  Public  Notice,  19  FCC  Rcd  11374  (WCB  2004);  Wireline  Competition  Bureau  Extends  Reply  Comment  Cycle  on  Qwests  Petition  for  Forbearance  in  the  Omaha  Metropolitan  Statistical  Area,  WC  Docket  No. 
 04-  223,  Public  Notice,  19  FCC  Rcd  14798  (WCB  2004).  The  Bureau  extended  the  one-  year  deadline  for  acting  on  Qwests  Petition  by  90  days.  See  Qwest  Corporations  Petition  for  Forbearance  in  the  Omaha  Metropolitan 
 Statistical  Area,  WC  Docket  No.  04-  223,  Order,  20  FCC  Rcd  2531  (WCB  2005). 
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 2.  We  grant  Qwest  forbearance  from  the  obligation  to  provide  unbundled  loops  and  dedicated  transport  pursuant  to  section  251(  c)(  3)  in  those  portions  of  its  service  territory  in  the  Omaha  MSA  3  where 
 a  facilities-  based  competitor  has  substantially  built  out  its  network.  We  also  are  persuaded  by  the  evidence  on  the  record  to  forbear  from  applying  certain  dominant  carrier  regulation  to  Qwests  provision 
 of  mass  market  switched  access  and  broadband  services  in  Qwests  service  territory.  With  the  exception  of  minor  relief  from  sections  271  and  251(  c)(  6)  that  reflects  the  relief  we  grant  from  section  251(  c)(  3),  we 
 deny  Qwests  Petition  in  all  other  respects.  While  each  case  must  be  judged  on  its  own  merits,  and  while  we  adopt  herein  no  rules  of  general  applicability,  we  expect  our  Order  to  provide  incentives  for  facilities-based 
 competitors  to  expand  their  deployment  and  service  offerings  in  Omaha,  and  we  look  forward  to  the  day  when  that  competition  justifies  more  of  the  relief  Qwest  seeks.  4 

 II.  BACKGROUND 
 3.  Section  251(  c)  Requirements.  The  Act  includes  a  number  of  provisions  designed  to  promote  the  development  of  competitive  markets.  5  As  noted  above,  Qwest  seeks  relief  from  all  section  251(  c) 
 obligations,  which  are  the  duties  to  negotiate  in  good  faith  the  terms  and  conditions  of  section  251(  b)  and  (c)  agreements;  provide  interconnection  at  any  technically  feasible  point  to  any  requesting 
 telecommunications  carrier  at  cost-  based  rates  for  the  transmission  and  routing  of  telephone  exchange  service  and  exchange  access  service;  provide  UNEs  for  the  provision  of  telecommunications  service;  offer 
 for  resale  at  wholesale  rates  any  telecommunications  service  that  the  carrier  provides  at  retail;  provide  reasonable  notice  of  network  changes;  and  provide  collocation.  6 

 4.  In  light  of  the  scope  of  the  relief  we  grant  Qwest  today    relief  from  many  of  its  section  251(  c)(  3)  obligations    we  focus  our  section  251(  c)  background  discussion  on  issues  related  to  section 
 251(  c)(  3)  in  particular.  The  Commission  previously  has  summarized  the  long  and  complex  history  of  our  unbundling  regime  since  the  passage  of  the  1996  Act.  7  Here,  we  offer  only  a  brief  review  of  recent 
 regulatory  developments  as  they  affect  the  requirements  most  relevant  to  this  proceeding. 

 3  Qwests  service  territory  in  the  Omaha  MSA  encompasses  24  wire  center  service  areas  in  5  counties  in  Nebraska 
 and  Iowa.  Sixteen  of  these  wire  centers  are  located  in  Nebraska,  and  eight  are  located  in  Iowa.  See  Qwest  Petition  at  7,  19-  20,  n.  60;  see  also  Qwest  Petition,  Exhibit  A,  Affidavit  of  David  L.  Teitzel  (Qwest  Teitzel  Aff.)  at  2  n.  3. 

 4  This  proceeding  considers  factors  unique  to  the  Omaha  MSA.  It  does  not  consider  and  does  not  reach  the  situation 
 where  the  incumbent  LECs  primary  competitor  uses  unbundled  networks  elements  (UNEs),  particularly  unbundled  loops,  as  the  primary  vehicle  for  serving  and  acquiring  customers  in  the  relevant  market.  Such  a  situation 

 necessarily  raises  different  issues  with  respect  to  our  section  10  analysis.  We  do  not  consider  or  address  them  here. 
 5  See,  e.  g.,  47  U.  S.  C.    251. 

 6  See  47  U.  S.  C.    251(  b),  251(  c)(  1)-(  6);  see  also  47  C.  F.  R.    51.301  (implementing  section  251(  c)(  1)),  51.305 
 (implementing  section  251(  c)(  2)),  51.301-  19,  51.321,  51.323  (implementing  section  251(  c)(  3)),  51.601-  17  (implementing  section  251(  c)(  4)),  51.325-  35  (implementing  section  251(  c)(  5)),  51.323  (implementing  section 

 251(  c)(  6)). 
 7  See  Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers,  Implementation  of 
 the  Local  Competition  Provisions  of  the  Telecommunications  Act  of  1996,  Deployment  of  Wireline  Services  Offering  Advanced  Telecommunications  Capability,  CC  Docket  Nos.  96-  98,  98-  147,  01-  338,  Report  and  Order  and  Order  on 

 Remand  and  Further  Notice  of  Proposed  Rulemaking,  18  FCC  Rcd  16978,  16992-  17007,  paras.  8-  34  (2003)  (Triennial  Review  Order),  affd  in  part,  remanded  in  part,  vacated  in  part,  United  States  Telecom  Assn  v.  FCC, 
 (continued.) 
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 5.  Section  251(  c)(  3)  imposes  on  incumbent  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.  The  Act  does  not  identify  which  network  elements  are  subject  to  the  section  251  (c)  (3)  unbundling  obligations.  8  Instead,  Congress  directed  the  Commission 
 to  determine  what  non-  proprietary  network  elements  must  be  unbundled  under  section  251(  c)(  3)  after  considering,  at  a  minimum,  whether  access  to  a  non-  proprietary  element  on  an  unbundled  basis  would 
 impair  a  requesting  carriers  ability  to  provide  service.  9  Under  section  252,  UNEs  that  must  be  offered  pursuant  to  section  251(  c)(  3)  must  be  made  available  at  cost-  based  rates,  as  determined  using  the  TELRIC 
 methodology.  10 
 6.  In  February  2005,  the  Commission  released  the  Triennial  Review  Remand  Order,  11  in  which  it  revised  the  list  of  network  elements  that  must  be  provided  as  UNEs.  The  Commission  also  modified  its 

 unbundling  framework  by  making  impairment  determinations  in  part  by  drawing  reasonable  inferences  about  the  prospects  for  competition  in  one  geographic  market  from  the  state  of  competition  in  other, 
 similar  markets.  12  In  making  such  inferences  for  high-  capacity  loops  and  transport,  the  Commission  (Continued  from  previous  page) 
 359  F.  3d  554  (D.  C.  Cir.  2004)  (USTA  II),  cert.  denied  sub  nom.  Natl  Assn  Regulatory  Util.  Commrs  v.  United  States  Telecom  Assn,  125  S.  Ct.  313,  316,  345  (2004). 

 8  47  U.  S.  C.    251(  c)(  3). 
 9  See  id.    251(  d)(  1),  (2)(  B).  For  proprietary  network  elements,  the  Act  directs  the  Commission  to  consider 
 whether  access  to  such  network  elements  is  necessary.  See  id.    251(  d)(  2)(  A).  Almost  all  network  elements  have  been  considered  non-  proprietary  and  analyzed  under  section  251(  d)(  2)(  B). 

 10  See  id.    252(  d)(  1).  The  Commission  established  the  TELRIC  pricing  methodology  that  state  commissions  must 
 use  to  determine  what  are  permissible  cost-  based  rates  incumbent  LECs  may  charge  for  UNEs  in  the  Local  Competition  First  Report  and  Order.  Implementation  of  the  Local  Competition  Provisions  of  the 

 Telecommunications  Act  of  1996,  CC  Docket  Nos.  96-  98,  95-  185,  First  Report  and  Order,  11  FCC  Rcd  15499,  15846-  50,  paras.  679-  89  (1996)  (Local  Competition  First  Report  and  Order)  (subsequent  history  omitted) 
 (establishing  the  TELRIC  methodology  and  asking  the  states  to  perform  the  necessary  analysis  under  this  methodology).  The  Supreme  Court  upheld  this  allocation  of  federal  and  state  jurisdiction,  see  AT&  T  Corp.  v.  Iowa 
 Util.  Bd.,  525  U.  S.  366,  377-  86  (1999),  and  upheld  the  TELRIC  pricing  methodology,  see  Verizon  Communications  v.  FCC,  535  U.  S.  467  (2002).  The  Commission  has  initiated  a  separate  proceeding  in  which  it  is  comprehensively 
 reviewing  TELRIC.  Review  of  the  Commissions  Rules  Regarding  the  Pricing  of  Unbundled  Network  Elements  and  the  Resale  of  Service  by  Incumbent  Local  Exchange  Carriers,  WC  Docket  No.  03-  173,  Notice  of  Proposed 
 Rulemaking,  18  FCC  Rcd  18945  (2003). 
 11  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,  2541,  para.  12  (2004)  (Triennial  Review  Remand  Order),  appeal  pending,  Covad  Communications  Co.  v.  FCC,  Nos. 

 05-  1095  et  al.  (filed  Feb.  24,  2005).  In  August  2004,  the  Commission  issued  the  Interim  Order  and  NPRM,  which  sought  comment  on  how  to  respond  to  the  D.  C.  Circuits  USTA  II  decision.  Unbundled  Access  to  Network 
 Elements;  Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers,  CC  Docket  No.  01-  338,  WC  Docket  No.  04-  313,  Order  and  Notice  of  Proposed  Rulemaking,  19  FCC  Rcd  16783  (2004) 
 (Interim  Order  and  NPRM).  To  avoid  excessive  disruption  of  the  local  telecommunications  market  while  it  wrote  the  new  rules  created  in  the  Triennial  Review  Remand  Order,  the  Commission,  among  other  things,  also  required 
 incumbent  LECs  to  adhere  to  the  commitments  they  made  in  their  interconnection  agreements,  applicable  statements  of  generally  available  terms  (SGATs)  and  relevant  state  tariffs  that  were  in  effect  on  June  15,  2004. 

 12  See,  e.  g.,  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2546,  para.  22. 
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 adopted  a  wire-  center-  based  analysis  that  used  the  number  of  access  lines  and  fiber  collocations  in  a  wire  center  as  proxies  to  determine  impairment  for  high-  capacity  loop  and  dedicated  transport  UNEs.  13  The 
 Commission  also  concluded  on  a  nationwide  basis  that  incumbent  LECs  did  not  have  an  obligation  to  unbundle  mass  market  local  circuit  switching.  14 

 7.  Section  271  Unbundling  Requirements.  Section  271(  c)(  2)(  B)  of  the  Act  sets  forth  a  fourteen  point  competitive  checklist  of  access,  interconnection  and  other  threshold  requirements  that  a  Bell 
 operating  company  (BOC)  must  demonstrate  that  it  satisfies  before  that  BOC  can  be  authorized  to  provide  in-  region,  interLATA  services.  15  After  a  BOC  obtains  section  271  authority  to  offer  in-  region  interLATA 
 services,  these  threshold  requirements  become  ongoing  requirements.  16  Because  Qwest  is  a  BOC  that  has  been  granted  the  authority  to  provide  interLATA  services  in  its  in-  region  states,  including  Iowa  and 
 Nebraska,  it  is  subject  to  the  requirements  of  section  271(  c)(  2)(  B).  17  In  its  Petition,  Qwest  seeks  forbearance  relief  from  checklist  items  1  through  6  and  14.  18  Checklist  items  1  through  3  and  14  establish 
 the  obligations  to  provide  interconnection  in  accordance  with  the  requirements  of  sections  251(  c)(  2)  and  252(  d)(  1);  nondiscriminatory  access  to  section  251(  c)(  3)  UNEs;  nondiscriminatory  access  to  poles,  ducts, 
 conduits,  and  rights-  of-  way  owned  or  controlled  by  the  BOC  in  accordance  with  the  requirements  of  section  224;  19  and  the  obligation  to  provide  telecommunications  services  for  resale  in  accordance  with  the 

 13  Specifically,  the  Commission  found  that  competing  carriers  are  impaired  without  access  to  DS1  transport  except 
 on  routes  connecting  a  pair  of  wire  centers,  where  both  wire  centers  contain  at  least  four  fiber-  based  collocators  or  at  least  38,000  business  access  lines.  It  also  found  that  competing  carriers  are  impaired  without  access  to  DS3  or 

 dark  fiber  transport  except  on  routes  connecting  a  pair  of  wire  centers,  each  of  which  contains  at  least  three  fiber-based  collocators  or  at  least  24,000  business  lines.  Finally,  the  Commission  found  that  competing  carriers  are  not 
 impaired  without  access  to  entrance  facilities  connecting  an  incumbent  LECs  network  with  a  competitive  LECs  network  in  any  instance.  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2536,  para.  5.  For  enterprise  loops,  the 
 Commission  found  that  competitive  LECs  are  impaired  without  access  to  DS3-  capacity  loops  except  in  any  building  within  the  service  area  of  a  wire  center  containing  38,000  or  more  business  lines  and  4  or  more  fiber-  based 
 collocators.  It  also  found  that  competitive  LECs  are  impaired  without  access  to  DS1-  capacity  loops  except  in  any  building  within  the  service  area  of  a  wire  center  containing  60,000  or  more  business  lines  and  4  or  more  fiber-  based 
 collocators.  See  id.  The  Commission  also  found  that  carriers  are  not  impaired  on  a  nationwide  basis  without  access  to  unbundled  dark  fiber  loops.  See  id.  at  2633,  para.  182. 

 14  See  id.  at  2641-  59,  paras.  199-  226;  see  also  USTA  II,  359  F.  3d  at  564-  71.  The  Commission  determined  that 
 competitive  LECs  are  not  impaired  without  access  to  unbundled  mass  market  local  switching,  and  that  regardless  of  any  potential  impairment  that  may  still  exist,  the  costs  associated  with  unbundling  justified  a  decision  not  to 

 unbundle  pursuant  to  section  251(  d)(  2)  s  at  a  minimum  authority.  See  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2643-  44,  paras.  202-  04. 

 15  47  U.  S.  C.    271(  c)(  2)(  B);  see  also  47  U.  S.  C.    153(  4)  (defining  Bell  operating  company). 
 16  47  U.  S.  C.    271(  d)(  6). 
 17  See  Application  by  Qwest  Communications  International,  Inc.  for  Authorization  to  Provide  In-  region,  InterLATA 
 Services  in  the  Colorado,  Idaho,  Iowa,  Montana,  Nebraska,  North  Dakota,  Utah,  Washington  and  Wyoming,  WC  Docket  No.  02-  314,  Memorandum  Opinion  and  Order,  17  FCC  Rcd  26303  (2002)  (Qwest  IA/  NE  Section  271 

 Order). 
 18  See  Petition  at  1. 

 19  As  originally  enacted,  section  224  was  intended  to  address  obstacles  that  cable  operators  encountered  in  obtaining 
 access  to  poles,  ducts,  conduits,  or  rights-  of-  way  owned  or  controlled  by  utilities.  The  1996  Act  amended  section  (continued.) 
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 requirements  of  sections  251(  c)(  4)  and  252(  d)(  3).  20  Checklist  items  4,  5,  and  6  establish  independent  obligations  to  provide  local  loops,  local  transport,  and  local  switching.  21 
 8.  In  the  Triennial  Review  Order,  the  Commission  considered  the  relationship  between  sections  251  and  271.  Based  on  its  interpretation  of  the  Act,  the  Commission  concluded  that  checklist  items  4 
 through  6,  which,  unlike  the  other  checklist  items  listed  above,  do  not  incorporate  by  reference  the  requirements  of  section  251(  c)  or  other  provisions  of  the  Act,  constitute  a  distinct  statutory  basis  for  the 
 requirement  that  BOCs  provide  competitors  with  access  to  certain  network  elements.  Therefore,  a  BOC  must  provide  access  to  network  elements  encompassed  within  the  scope  of  checklist  items  4  through  6, 
 even  if  those  elements  are  not  subject  to  unbundling  under  section  251(  c)(  3).  22  The  Commission  explained  that  rates  for  network  elements  made  available  pursuant  to  checklist  items  4  through  6  are 
 governed  not  by  the  TELRIC  standard  that  applies  to  section  251(  c)(  3)  unbundling  but  instead  by  the  just  and  reasonable  standard  of  sections  201  and  202.  23  The  D.  C.  Circuit  affirmed  the  Commissions 
 conclusions  related  to  the  section  271  obligations.  24 
 9.  After  Qwest  filed  its  Petition  in  the  present  proceeding,  the  Commission  determined,  in  the  MDU  Reconsideration  Order,  that  the  section  706  considerations  that  partly  justified  the  Triennial 

 Review  Orders  fiber-  to-  the-  home  (FTTH)  unbundling  relief  25  should  be  extended  to  encompass  FTTH 
 (Continued  from  previous  page)  224  in  several  important  respects  to  ensure  that  telecommunications  carriers  as  well  as  cable  operators  have  access 

 to  poles,  ducts,  conduits  or  rights-  of-  way  owned  or  controlled  by  utility  companies,  including  LECs.  See  Application  of  BellSouth  Corporation,  BellSouth  Telecommunications,  Inc.,  and  BellSouth  Long  Distance,  Inc.,  for 
 Provision  of  In-  Region,  InterLATA  Services  in  Louisiana,  Memorandum  Opinion  and  Order,  CC  Docket  No.  98-  121,  13  FCC  Rcd  20599,  20706,  para.  171  n.  574  (1998)  (Second  BellSouth  Louisiana  Section  271  Order);  see  also 
 47  U.  S.  C.    224. 
 20  See  47  U.  S.  C.    271(  c)(  2)(  B)(  i)-(  iii),  (xiv).  Sections  251(  c)(  2)-(  4),  and  section  224  are  discussed  above.  See 
 supra  notes  6,  19  and  paras.  5-  6.  Section  252(  d)(  1),  inter  alia,  establishes  the  pricing  standard  for  UNEs.  47  U.  S.  C.    252(  d)(  1).  Section  252(  d)(  3)  requires  state  commissions  to  determine  wholesale  rates  on  the  basis  of 

 retail  rates  charged  to  subscribers  for  the  telecommunications  service  requested,  excluding  the  portion  thereof  attributable  to  any  marketing,  billing,  collection,  and  other  costs  that  will  be  avoided  by  the  local  exchange  carrier. 
 47  U.  S.  C.    252(  d)(  3). 
 21  47  U.  S.  C.    271(  c)(  2)(  B)(  iv)-(  vi);  see  also  Application  by  SBC  Communications,  Inc.,  Southwestern  Bell 
 Telephone  Company,  and  Southwestern  Bell  Communications  Services,  Inc.  D/  B/  A  Southwestern  Bell  Long  Distance  to  Provide  In-  Region,  InterLATA  Services  in  Texas,  CC  Docket  No.  00-  65,  Memorandum  Opinion  and 

 Order,  15  FCC  Rcd  18354,  18520,  para.  336  (2000);  Second  BellSouth  Louisiana  Section  271  Order,  13  FCC  Rcd  at  20722,  para.  207.  The  Commission  has  required  that  BOCs  provide  both  dedicated  and  shared  transport  to 
 requesting  carriers.  See  Second  BellSouth  Louisiana  Section  271  Order,  13  FCC  Rcd  at  20719,  para.  201. 
 22  Triennial  Review  Order,  18  FCC  Rcd  at  17382-  91,  paras.  649-  67,  corrected  by  Triennial  Review  Errata,  19  FCC 
 Rcd  19020,  19022,  paras.  30-  33;  see  also  Triennial  Review  Order,  18  FCC  Rcd  at  17384,  para.  653. 
 23  Id.  at  17386-  89,  paras.  656-  64,  corrected  by  Triennial  Review  Order  Errata,  18  FCC  Rcd  at  19022,  paras.  32-  33. 

 24  USTA  II,  359  F.  3d  at  588-  90. 
 25  In  the  Triennial  Review  Order,  the  Commission  determined  that  incumbent  LECs  have  no  unbundling  obligation 
 for  new  fiber  construction  and  for  fiber  overbuild  situations  where  the  incumbent  LEC  does  not  retire  existing  copper  loops.  See  Triennial  Review  Order,  18  FCC  Rcd  at  17142,  para.  273. 
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 loops  serving  predominantly  residential  multiple  dwelling  units  (MDUs).  26  Subsequently,  in  the  FTTC  Reconsideration  Order,  the  Commission  found  that  the  FTTH  analysis  also  applies  to  fiber-  to-  the-  curb 
 (FTTC)  loops    which  are  loops  that  bring  fiber  from  the  central  office  to  a  location  near  the  customers  premises    and  granted  the  same  unbundling  relief  to  FTTC  as  applied  to  FTTH.  27  In  the  Section  271 
 Broadband  Forbearance  Order,  the  Commission  granted  all  of  the  BOCs,  including  Qwest,  forbearance  from  section  271  unbundling  obligations  for  the  broadband  elements  that  the  Commission,  on  a  national 
 basis,  relieved  from  section  251(  c)(  3)  unbundling  in  the  Triennial  Review  Order,  and  subsequent  reconsideration  orders.  28  These  elements  include  FTTH  loops,  FTTC  loops,  the  packetized  functionality 
 of  hybrid  loops,  and  packet  switching.  29 
 10.  Dominant  Carrier  Regulation.  Under  Title  II  of  the  Act,  the  Commission  traditionally  has  applied  a  variety  of  regulations  to  carriers  in  order  to  protect  consumers  from  unjust,  unreasonable,  and 

 unreasonably  discriminatory  rates  and  practices.  These  regulations  include  requirements  arising  under  section  214  related  to  transfer  of  control  and  discontinuance,  cost-  supported  tariffing  requirements,  and 
 price  regulation  for  services  falling  under  the  Commissions  jurisdiction.  30  The  Competitive  Carrier  Proceeding  considered  revisions  to  the  Commissions  regulations  to  distinguish  between  carriers  that  are 
 subject  to  effective  competition  in  their  respective  telecommunications  markets  and  those  that  are  not.  31 

 26  Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers;  Implementation  of  the 
 Local  Competition  Provisions  of  the  Telecommunications  Act  of  1996;  Deployment  of  Wireline  Services  Offering  Advanced  Telecommunications  Capability,  CC  Docket  Nos.  01-  338,  96-  98,  98-  147,  Order  on  Reconsideration,  19 

 FCC  Rcd  15856,  15858,  paras.  7-  9  (2004)  (MDU  Reconsideration  Order). 
 27  Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers;  Implementation  of  the 
 Local  Competition  Provisions  of  the  Telecommunications  Act  of  1996;  Deployment  of  Wireline  Services  Offering  Advanced  Telecommunications  Capability,  CC  Docket  Nos.  01-  338,  96-  98,  98-  147,  Order  on  Reconsideration,  19 

 FCC  Rcd  20293,  20297-  303,  paras.  9-  19  (2004)  (FTTC  Reconsideration  Order);  see  also  id.  at  20293,  para.  1  n.  1. 
 28  See  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),  19  FCC  Rcd  21496,  21504,  para.  19  (2004)  (Section  271  Broadband  Forbearance  Order),  appeal  pending,  AT&  T  Corp.  v.  FCC,  No  05-  1028  (D.  C.  Cir.,  filed  Nov.  5,  2004).  To  the 
 extent  Qwest  seeks  identical  relief  in  its  present  Petition,  we  deny  its  Petition  to  that  degree  as  moot. 
 29  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21504,  para.  19. 

 30  See  47  U.  S.  C.    214(  a);  see  also  47  C.  F.  R.    63.71;  47  C.  F.  R.    61.38,  61.41-  61.49;  and  47  C.  F.  R.    61.41- 
 61.49,  65. 
 31  Policy  and  Rules  Concerning  Rates  for  Competitive  Common  Carrier  Services  and  Facilities  Authorizations 
 Therefor,  Notice  of  Inquiry  and  Proposed  Rulemaking,  77  FCC  2d  308  (1979);  First  Report  and  Order,  85  FCC  2d  1  (1980)  (Competitive  Carrier  First  Report  and  Order);  Further  Notice  of  Proposed  Rulemaking,  84  FCC  2d  445 

 (1981);  Second  Further  Notice  of  Proposed  Rulemaking,  FCC  82-  187,  47  Fed.  Reg.  17,308  (1982);  Second  Report  and  Order,  91  FCC  2d  59  (1982);  Order  on  Reconsideration,  93  FCC  2d  54  (1983);  Third  Further  Notice  of 
 Proposed  Rulemaking,  48  Fed.  Reg.  28,292  (1983);  Third  Report  and  Order,  48  Fed.  Reg.  46,791  (1983);  Fourth  Report  and  Order,  95  FCC  2d  554  (1983)  (Competitive  Carrier  Fourth  Report  and  Order),  vacated,  AT&  T  v.  FCC, 
 978  F.  2d  727  (D.  C.  Cir.  1992),  cert.  denied,  MCI  Telecommunications  Corp.  v.  AT&  T,  509  U.  S.  913  (1993);  Fifth  Report  and  Order,  98  FCC  2d  1191  (1984);  Sixth  Report  and  Order,  99  FCC  2d  1020  (1985),  vacated,  MCI 
 (continued.) 
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 The  Commission  found  that  certain  regulations  that  apply  to  all  carriers  under  Title  II  are  unnecessary  for  carriers  that  are  subject  to  competition  and  therefore  lack  sufficient  market  power  to  engage  in 
 anticompetitive  activity.  32 
 11.  Qwest  asks  us  to  forbear  from  applying  dominant  carrier  regulation  to  its  provision  of  telecommunications  services  in  its  service  area  within  the  Omaha  MSA.  33  Because  the  Commission  has 

 in  the  past  found  that  incumbent  LECs,  including  Qwest,  have  market  power  in  the  provision  of  most  services  within  their  service  areas,  the  rates  that  incumbent  LECs  may  charge  for  certain  services 
 currently  are  subject  to  dominant  carrier  regulation.  34  Dominant  carriers  are  subject  to  price  cap  or  rate-of-  return  regulation,  and  must  file  tariffs  for  some  services    on  a  minimum  of  seven  days  notice  and 
 often  more    and  usually  with  cost  support  data.  35  Non-  dominant  carriers,  on  the  other  hand,  are  not  subject  to  rate  regulation  and  may  file  tariffs,  on  one  days  notice  and  without  cost  support  that  are 
 presumed  lawful.  36  In  addition,  non-  dominant  carriers  are  required  to  wait  only  30  days  for  their  applications  to  discontinue,  reduce,  or  impair  service  to  be  granted,  as  opposed  to  a  60-  day  grant  period 
 for  dominant  carriers.  37  Finally,  dominant  carriers  are  eligible  for  presumptive  streamlined  treatment  for  fewer  types  of  transfer  of  control  under  section  214  than  non-  dominant  carriers.  38 

 12.  Regulation  as  an  Incumbent  Local  Exchange  Carrier.  Qwest  requests  forbearance  from  regulation  as  an  incumbent  LEC  pursuant  to  section  251(  h)(  l).  39  Section  251(  h)(  1)  defines  an 
 incumbent  LEC  as: 
 with  respect  to  an  area,  the  local  exchange  carrier  that    (A)  on  the  date  of  enactment  of  the  Telecommunications  Act  of  1996,  provided 

 telephone  exchange  service  in  such  area;  and  (B)(  i)  on  such  date  of  the  enactment,  was  deemed  to  be  a  member  of  the  exchange  carrier 
 association  pursuant  to  section  69.601(  b)  of  the  Commissions  regulations  (47  C.  F.  R.  69.601(  b));  or  (ii)  is  a  person  or  entity  that,  on  or 

 (Continued  from  previous  page)  Telecommunications  Corp.  v.  FCC,  765  F.  2d  1186  (D.  C.  Cir.  1985)  (collectively  referred  to  as  the  Competitive 
 Carrier  Proceeding). 
 32  See,  e.  g.,  Competitive  Carrier  First  Report  and  Order,  85  FCC  2d  1. 

 33  See  Petition  at  1,  3,  5-  21. 
 34  See  Competitive  Carrier  First  Report  and  Order,  85  FCC  2d  at  21,  para.  58  (finding  that  control  of  bottleneck 
 facilities  is  prima  facie  evidence  of  market  power). 
 35  See  47  U.  S.  C.    203(  b),  204(  a)(  3);  47  C.  F.  R.    61.38,  61.41,  61.58;  Implementation  of  Section  402(  b)(  1)(  A)  of 
 the  Telecommunications  Act  of  1996,  CC  Docket  No.  96-  187,  Report  and  Order,  12  FCC  Rcd  2170,  2182,  2188,  2191-  92,  2202-  03,  paras.  19,  31,  40,  67  (1997). 

 36  47  C.  F.  R.    1.773(  a)(  ii)  and  61.23(  c);  Tariff  Filing  Requirements  for  Non-  dominant  Carriers,  CC  Docket  No. 
 93-  36,  Order,  10  FCC  Rcd  13653,  13653-  54,  paras.  3-  4  (1995). 
 37  47  C.  F.  R.    63.71(  c). 

 38  47  C.  F.  R.    63.03(  b). 
 39  See  Petition  at  38,  39. 
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 after  such  date  of  enactment,  became  a  successor  or  assign  of  a  member  described  in  clause  (i).  40 
 III.  DISCUSSION 
 A.  Forbearance  Standard 
 13.  The  goal  of  the  Telecommunications  Act  of  1996  is  to  establish  a  pro-  competitive,  de-  regulatory  national  policy  framework.  41  An  integral  part  of  this  framework  is  the  requirement,  set 

 forth  in  section  10  of  the  1996  Act,  that  the  Commission  forbear  from  applying  any  provision  of  the  Act,  or  any  of  the  Commissions  regulations,  if  the  Commission  makes  certain  specified  findings  with  respect 
 to  such  provisions  or  regulations.  42  Specifically,  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  charges  and  practices  are  just  and  reasonable,  and  are  not  unjustly  or  unreasonably  discriminatory;  (2)  enforcement  of  the  regulation  is  not  necessary  to  protect  consumers;  and  (3) 
 forbearance  is  consistent  with  the  public  interest.  43  In  making  such  determinations,  the  Commission  must  also  consider  pursuant  to  section  10(  b)  whether  forbearance  from  enforcing  the  provision  or  regulation 
 will  promote  competitive  market  conditions.  44  Section  10(  d)  specifies,  however,  that  [  e]  xcept  as  provided  in  section  251(  f),  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.  45 
 14.  Consistent  with  our  statutory  obligations,  in  this  Order  we  therefore  apply  the  criteria  of  section  10  to  the  regulations  and  statutory  provisions  from  which  Qwest  seeks  relief.  46  As  part  of  our 

 forbearance  analysis,  and  consistent  with  Qwests  Petition,  we  look  to  the  Commissions  previous 
 40  47  U.  S.  C.    251(  h)(  1). 

 41  Joint  Explanatory  Statement  of  the  Committee  of  Conference,  S.  Conf.  Rep.  No.  230,  104th  Cong.,  2d  Sess.  113 
 (1996). 
 42  47  U.  S.  C.    160(  a). 

 43  Id. 
 44  Id.  at    160(  b). 
 45  Id.  at    160(  d). 
 46  We  stress  that  our  decision  today  is  based  on  the  totality  of  the  record  evidence  particular  to  the  Omaha  MSA. 
 The  presence  of  a  subset  of  similar  facts  in  other  markets    such  as  an  equivalent  degree  of  coverage  by  an  incumbent  cable  operator  that  was  not  actively  engaged  in  providing  competitive  telecommunications  offerings  over 

 its  own  facilities    might  result  in  a  different  outcome.  See,  e.  g.,  Letter  from  Jim  Lamoureux,  Senior  Counsel,  SBC  Services,  Inc.,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  at  2  (filed  Sept.  12,  2005)  (SBC 
 Sept.  12,  2005  Ex  Parte  Letter)  (stating  that  [  t]  he  characteristics  of  retail  markets  are  distinct  on  many  levels,  and  should  be  considered  on  a  case-  by-  case  basis.  .  .  .  much  of  the  debate  in  this  proceeding  appears  to  have  focused  on 
 market  statistics  that  are  unique  to  the  Omaha  area  and  are  likely  not  applicable  to  other  markets);  see  also  Letter  from  J.  G.  Harrington,  Counsel  to  Cox,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  Attach.  at  5 
 (filed  Sept.  14,  2005)  (Cox  Sept.  14,  2005  Ex  Parte  Letter)  (stating  that  in  some  markets  other  than  the  Omaha  MSA  Cox  relies  on  UNEs  for  certain  facilities,  illustrating  why  it  is  important  for  the  Commission  to  engage  in 
 fact-  specific,  market-  by-  market  analysis  in  forbearance  proceedings). 
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 caselaw  on  dominance  for  guidance.  We  emphasize,  however,  that  in  undertaking  this  analysis,  we  do  not  issue  any  declaratory  rulings,  promulgate  any  new  rules,  or  otherwise  make  any  general  determinations  of 
 the  sort  we  would  properly  make  in  a  rulemaking  proceeding  on  a  fuller  record.  47  Accordingly,  our  sole  task  here  is  to  determine  whether  to  forbear  under  the  standard  of  section  10  from  the  regulatory  and 
 statutory  provisions  at  issue,  and  we  do  not    and  cannot    issue  comprehensive  proclamations  in  this  proceeding  regarding  non-  dominance,  non-  impairment,  or  section  251(  h)  status  in  the  Omaha  MSA.  48 

 B.  Dominant  Carrier  Regulation 
 15.  We  grant  in  part  and  deny  in  part  Qwests  request  for  forbearance  from  the  application  of  dominant  carrier  regulation  to  its  provision  of  telecommunications  services  in  the  Omaha  MSA. 

 Specifically,  we  grant  Qwests  request  to  forbear  from  applying  our  price  cap,  rate  of  return,  tariffing,  and  60-  day  discontinuance  regulations  for  interstate  mass  market  exchange  access  services  and  mass  market 
 broadband  Internet  access  services,  and  deny  its  request  for  forbearance  with  regard  to  its  enterprise  services.  We  deny  the  remainder  of  Qwests  request  for  forbearance  from  applying  any  other  dominant 
 carrier  regulation  to  these  services,  and  to  the  extent  it  seeks  forbearance  from  applying  any  dominant  carrier  regulation  to  its  provision  of  other  telecommunications  services. 

 1.  Scope  of  Qwests  Petition  Subject  to  Section  10 
 16.  The  Commissions  first  task  is  to  identify  the  specific  regulatory  provisions  at  issue.  49  We  focus  our  forbearance  review  to  the  rules  and  regulations  that  Qwest  specifically  identifies  in  its  Petition: 
 (  1)  requirements  arising  under  section  214  that  apply  to  dominant  carriers,  (2)  Sections  61.38  and  61.41-  61.49,  which  require  dominant  carriers  to  file  tariffs  on  up  to  15-  days  notice  with  cost  support;  and 
 (3)  Sections  61.41-  61.49,  and  65,  which  impose  price  cap  and  rate  of  return  regulation  on  dominant 
 47  Thus,  in  todays  Order,  we  do  not  craft  any  new  tests  for  impairment  or  incumbent  LEC  status,  or  any  other 
 generally  applicable  tests  we  might  fashion  were  a  different  category  of  petition  before  us.  See,  e.  g.,  47  U.  S.  C.    251(  h)(  2)  (  The  Commission  may,  by  rule,  provide  for  the  treatment  of  a  local  exchange  carrier  (or  class  or 

 category  thereof)  as  an  incumbent  local  exchange  carrier  for  purposes  of  this  section  if  certain  criteria  are  satisfied.)  (emphasis  added).  Similarly,  we  are  not  persuaded  by  Qwests  arguments  that  a  regulation  that  is 
 subject  to  a  petition  for  forbearance  may  be  retained  only  if  the  current  record  would  justify  adoption  of  the  rule  today,  because  neither  section  10  nor  the  Commissions  precedent  directs  us  to  re-  examine  whether  a  rule  carries 
 out  the  goals  of  a  prior  rulemaking.  See  Letter  from  Cronan  OConnell,  Vice  President    Federal  Regulatory  Affairs,  Qwest,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  Attach.  at  1-  6  (filed  Sept.  2,  2005) 
 (Qwest  Sept.  2,  2005  Ex  Parte  Letter);  see  also  47  U.  S.  C.    160. 
 48  Therefore,  we  reject  commenters  proposals  that  we  interpret  and  apply  the  section  251(  c)(  3)  impairment  standard 
 or  the  section  251(  h)  standard  to  our  forbearance  analysis.  See,  e.  g.,  SBC  Reply  at  9-  12;  see  also  Letter  from  Thomas  Jones,  Counsel  to  Cbeyond  Communications  et  al.,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No. 

 04-  223  at  4-  6  (filed  Sept.  13,  2005)  (Cbeyond  et  al.  Sept.  13,  2005  Ex  Parte  Letter)  (arguing  that  Qwest  has  not  demonstrated  the  absence  of  impairment  under  section  251(  c)(  3)).  Faced  with  a  similar  request  for  a  non-dominance 
 declaration  as  part  of  a  forbearance  petition,  the  Commission  made  clear  that  it  did  not  make  any  findings  regarding  whether  the  petitioner  was  non-  dominant  for  the  provision  of  any  service,  and  that  the  tariffing 
 forbearance  at  issue  was  limited  to  the  requirements  raised  in  the  petition.  Review  of  Regulatory  Requirements  for  Incumbent  LEC  Broadband  Telecommunications  Services,  Memorandum  Opinion  and  Order,  17  FCC  Rcd  27000, 
 27008,  para.  14  (2002)  (ASI  Forbearance  Order). 
 49  ASI  Forbearance  Order,  17  FCC  Rcd  at  27010,  para.  18. 
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 carriers.  50  To  the  extent  Qwest  seeks  relief  from  other  regulations  that  apply  to  dominant  carriers,  its  request  is  denied  for  failing  to  identify  specific  regulations  or  to  explain  how  they  meet  the  section  10 
 criteria.  51 
 17.  Although  Qwest  has  not  formally  requested  a  declaratory  ruling  that  it  is  non-  dominant,  we  recognize  the  strong  relationship  between  the  statutory  forbearance  criteria  and  the  Commissions 

 dominance  analysis,  particularly  with  regard  to  the  statutory  assessment  of  competitive  conditions  and  the  goal  of  protecting  consumers.  52  Specifically,  section  10(  a)  s  mandate  to  forbear  for  a 
 telecommunications  service,  or  class  of  .  .  .  telecommunications  service  in  any  or  some  of  a  carriers  geographic  markets  53  closely  parallels  the  Commissions  traditional  approach  under  its  dominance 
 assessments  to  product  markets  and  geographic  markets,  respectively.  Accordingly,  as  we  evaluate  the  regulations  at  issue  pursuant  to  the  section  10  standard  below,  our  inquiry  is  informed  by  the 
 Commissions  traditional  market  power  analysis. 
 2.  Application  of  Forbearance  Criteria  to  Qwests  Petition 
 18.  Through  the  Competitive  Carrier  Proceeding,  the  Commission  established  a  regulatory  framework  to  distinguish  between  dominant  carriers,  which  have  market  power,  and  carriers  classified  as 
 non-  dominant,  which  lack  market  power.  54  Under  the  framework  set  forth  in  the  LEC  Classification  Order,  the  Commission  determines  whether  a  carrier  is  dominant  by:  (1)  delineating  the  relevant  product 
 and  geographic  markets  for  examination  of  market  power;  (2)  identifying  firms  that  are  current  or  potential  suppliers  in  that  market;  and  (3)  determining  whether  the  carrier  under  evaluation  possesses 

 50  Petition  at  31-  32  (citations  omitted). 
 51  Neither  Qwest  nor  any  commenter  has  pointed  to  any  authority  that  would  compel  the  Commission  to  comb 
 through  its  rules  to  infer  which  other  regulations  are  encompassed  by  Qwests  general  request,  and  as  our  precedent  in  the  ASI  Forbearance  Order  and  SBC  IP  Forbearance  Order  indicates,  this  lack  of  specificity  alone  warrants 

 dismissal.  See  ASI  Forbearance  Order,  17  FCC  Rcd  at  2705-  06,  para.  9  (  In  addition  to  seeking  forbearance  from  tariffing  requirements,  SBC  requests  that  we  declare  it  non-  dominant  in  its  provision  of  advanced  services.  SBCs 
 petition,  however,  fails  to  request  any  specific  forbearance  relief,  other  than  relief  from  tariffing  regulation.)  (footnote  omitted);  Petition  of  SBC  Communications  Inc.  for  Forbearance  from  the  Application  of  Title  II  Common 
 Carrier  Regulation  to  IP  Platform  Services,  Memorandum  Opinion  and  Order,  WC  Docket  No.  04-  29,  FCC  05-  95,  paras.  14-  17  (rel.  May  5,  2005)  (SBC  IP  Forbearance  Order)  (denying  forbearance  petition  for,  inter  alia,  lack  of 
 specificity). 
 52  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  and  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).  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. 
 53  47  U.  S.  C.    160. 

 54  See  supra  paras.  10,  11.  Market  power  is  defined  as  the  ability  to  raise  prices  by  restricting  output,  or  to  raise 
 and  maintain  price  above  the  competitive  level  without  driving  away  so  many  customers  as  to  make  the  increase  unprofitable.  Competitive  Carrier  Fourth  Report  and  Order,  95  FCC  2d  at  558,  paras.  7,  8. 
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 individual  market  power  in  that  market.  55  The  Commission  defines  relevant  product  markets  by  identifying  and  aggregating  consumers  with  similar  demand  patterns.  56  The  Commission  has  also 
 explained  that  [  a]  geographic  market  aggregates  those  consumers  with  similar  choices  regarding  a  particular  good  or  service  in  the  same  geographical  area,  and  that  it  would  treat  as  a  geographic  market, 
 an  area  in  which  all  customers  in  that  area  will  likely  face  the  same  competitive  alternatives  for  a  product.  57 

 19.  Applying  the  section  10  criteria  as  informed  by  the  dominance  analysis,  we  forbear  from  applying  certain  dominant  carrier  regulations  to  Qwests  provision  of  mass  market  exchange  access 
 services,  as  well  as  mass  market  broadband  Internet  access  services,  because  we  find  that  all  elements  of  section  10(  a)  have  been  satisfied.  We  decline  to  forbear  from  applying  these  dominant  carrier  regulations 
 to  Qwests  provision  of  enterprise  services  because  Qwest  has  failed  to  demonstrate  satisfaction  of  any  of  the  three  conjunctive  section  10(  a)  forbearance  criteria. 

 a.  Relevant  Markets 
 (i)  Product  Market 
 20.  Our  inquiry  is  necessarily  limited  to  those  dominance  regulations  and  statutory  provisions  over  which  the  Commission  has  jurisdiction    dominant  carrier  regulation  of  interstate 

 telecommunications  services.  Any  dominant  carrier  regulation  of  local  exchange  service  or  other  intrastate  service  is  not  subject  to  our  forbearance  authority.  58 

 21.  Qwest  proposes,  without  further  explanation,  that  the  relevant  product  market  is  the  market  for  services  provided  under  Section  251(  c)  and  selected  services  under  Section  271  provided  within  the 

 55  Regulatory  Treatment  of  LEC  Provision  of  Interexchange  Services  Originating  in  the  LECs  Local  Exchange 
 Area,  CC  Docket  No.  96-  149,  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,  15776,  15782  (1997)  (LEC  Classification  Order) 

 56  See,  e.  g.,  Applications  of  Ameritech  Corp.,  Transferor,  and  SBC  Communications,  Inc.,  Transferee,  for  Consent 
 to  Transfer  Control  of  Corporations  Holding  Commission  Licenses  and  Lines  Pursuant  to  Sections  214  and  310(  d)  of  the  Communications  Act  and  Parts  5,  22,  24,  25,  63,  90,  95,  and  101  of  the  Commissions  Rules,  CC  Docket  No. 

 98-  141,  Memorandum  Opinion  and  Order,  14  FCC  Rcd  14712,  14746,  para.  68  (1999)  (SBC/  Ameritech  Order);  Application  of  WorldCom,  Inc.  and  MCI  Communications  Corporation  for  Transfer  of  Control  of  MCI 
 Communications  Corporation  to  WorldCom,  Inc.,  CC  Docket  No.  97-  211,  Memorandum  Opinion  and  Order,  13  FCC  Rcd  18025,  18119,  para.  164  (1998)  (WorldCom/  MCI  Order). 

 57  Applications  of  NYNEX  Corporation,  Transferor,  and  Bell  Atlantic  Corporation,  Transferee,  for  Consent  to 
 Transfer  Control  of  NYNEX  Corporation  and  its  Subsidiaries,  File  No.  NSD-  L-  96-  10,  FCC  97-  286,  Memorandum  Opinion  and  Order,  12  FCC  Rcd  19985,  20016,  para.  54  (BA/  NYNEX  Order). 

 58  Qwest  Reply  at  14  (stating  that  it  does  not  seek  the  preemption  of  any  existing  state  authority).  We  agree  with  the 
 commenters  who  note  the  open-  endedness  of  the  scope  of  services  for  which  Qwest  seeks  forbearance.  See  CompTel  Comments  at  20-  21  (asserting  that  it  is  unclear  from  the  Petition  whether  Qwest  is  asking  for  non-dominant 

 status  in  the  provision  of  exchange  access  services,  which  the  Commission  regulates,  or  in  the  provision  of  local  exchange  services,  which  the  Commission  does  not  regulate).  We  note  that  purely  intrastate 
 telecommunications  services  generally  fall  outside  the  Commissions  jurisdiction. 
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 boundaries  of  the  Omaha  MSA.  59  We  find  such  a  wide  scope  of  services  in  this  proposed  definition  to  be  unworkable  as  a  single  product  market,  especially  because  the  services  offered  to  mass  market 
 customers  may  not  be  adequate  or  feasible  substitutes  for  services  offered  to  business  customers.  60  However,  consistent  with  the  statutes  deregulatory  intent,  61  and  in  an  effort  to  conduct  a  thorough 
 forbearance  analysis  that  reflects  the  evidence  compiled  in  the  record,  we  disaggregate  the  telecommunications  services  that  Qwest  provides  into  more  discrete  classes.  62 

 22.  Accordingly,  for  purposes  of  evaluating  Qwests  request  for  relief  from  dominant  carrier  regulation,  we  divide  these  interstate  services  into  the  mass  market  (residential  consumers  and  small 
 business  customers)  and  the  enterprise  market  (medium-  sized  and  large  business  customers).  63  Our  analyses  of  the  mass  market  and  enterprise  market  are  not  identical  to,  but  are  in  accordance  with,  the 
 Commissions  past  product  market  analyses  for  those  services.  64  In  addition,  we  also  separate  out  mass  market  broadband  Internet  access  services,  consistent  with  the  Commissions  separate  review  of  that 
 market  in  prior  merger  proceedings.  65  Thus,  within  the  mass  market  we  look  at  both  switched  access 
 59  Petition  at  6. 
 60  SBC/  Ameritech  Order,  14  FCC  Rcd  at  14746  para.  68. 
 61  The  1996  Act  was  announced  as  [  a]  n  Act  [t]  o  promote  competition  and  reduce  regulation  in  order  to  secure 
 lower  prices  and  higher  quality  services  for  American  telecommunications  consumers  and  encourage  the  rapid  deployment  of  new  telecommunications  technologies.  Preamble,  Telecommunications  Act  of  1996,  Pub.  L.  No. 

 104-  104,  110  Stat.  56  (1996)  (Preamble  to  the  1996  Act). 
 62  We  do  not  include  Qwests  provision  of  interstate,  interLATA  service  in  this  inquiry,  because  Qwest  is  currently 
 non-  dominant  for  these  services.  Pursuant  to  section  272  of  the  Act,  Qwest  provides  these  services  through  a  section  272  affiliate,  which  is  treated  as  non-  dominant.  LEC  Classification  Order,  12  FCC  Rcd  at  15802,  para.  82 

 (classifying  BOCs  section  272  affiliates  as  non-  dominant  in  the  provision  of  in-  region,  interstate,  domestic  interLATA  services  and  in-  region  international  services). 

 63  In  light  of  the  evidence  submitted  into  the  record,  which  often  distinguishes  between  residential  and  business 
 customers  but  does  not  generally  provide  a  more  granular  break-  down  between  small  and  large  businesses  or  other  categories,  we  do  not  disaggregate  the  enterprise  market  further. 

 64  In  the  past,  for  purposes  of  market  power  assessment,  the  Commission  has  divided  services  into  the  mass  market 
 (residential  consumers  and  small  business)  and  the  enterprise  market  (larger  businesses,  namely  medium-  sized  and  large  business  customers).  See,  e.  g.,  SBC/  Ameritech  Order,  14  FCC  Rcd  at  14746  para.  68;  WorldCom/  MCI  Order, 

 13  FCC  Rcd  at  18119,  para.  164.  Unlike  these  decisions,  which  included  local  exchange  service  and  exchange  access  services  in  the  same  product  market,  here  we  only  examine  exchange  access  services  because  section  10(  a) 
 focuses  our  inquiry  on  the  target  services  to  which  our  regulations  apply. 
 65  See,  e.  g.,  Applications  for  Consent  to  the  Transfer  of  Control  of  Licenses  and  Section  214  Authorizations  from 
 MediaOne  Group,  Inc.,  Transferor,  to  AT&  T  Corp.,  Transferee,  CS  Docket  No.  99-  251,  Memorandum  Opinion  and  Order,  15  FCC  Rcd  9816,  9861,  para.  102  (2000)  (identifying  broadband  Internet  services  to  analyze  the 

 provision  of  broadband  Internet  services  to  residential  customers);  Applications  for  Consent  to  the  Transfer  of  Control  of  Licenses  and  Section  214  Authorizations  by  Time  Warner  Inc.  and  America  Online,  Inc.,  Transferors,  to 
 AOL  Time  Warner  Inc.,  Transferee,  CS  Docket  No.  00-  30,  Memorandum  Opinion  and  Order,  16  FCC  Rcd  6547,  6568  para.  53  (2001)  (identifying  high-  speed  Internet  access  services  to  analyze  the  provision  of  residential  high-speed 
 Internet  access  services).  Consistent  with  these  decisions,  mass  market  broadband  Internet  access  services  include  the  provision  of  high-  speed  Internet  access  over  cable  modem  platforms  as  well  as  DSL  platforms.  See 
 Review  of  Regulatory  Requirements  for  Incumbent  LEC  Broadband  Telecommunications  Services,  CC  Docket  No.  (continued.) 
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 services  and  broadband  Internet  access  services.  66  For  the  purposes  of  assessing  forbearance  from  dominant  carrier  regulation,  we  reject  suggestions  from  commenters  that  our  section  251(  c)(  3)  network 
 element  unbundling  precedent  controls  our  market  framework.  67 
 (ii)  Geographic  Market 
 23.  Qwest  submits  in  its  Petition  that  the  geographic  market  where  it  seeks  forbearance  is  the  Omaha  MSA,  and  clarifies  in  its  Reply  Comments  that  its  intended  geographic  market  is  its  service 

 territory  within  the  Omaha  MSA.  68  Qwest  represents  that  its  service  territory  falls  into  only  five  of  the  eight  counties  in  the  Omaha  MSA,  and  that  it  seeks  relief  in  only  those  five  counties  that  it  listed  in  its 
 original  Petition.  69  Qwest  also  states  that  its  service  territory  in  the  Omaha  MSA  includes  24  wire  centers  in  the  Omaha  MSA,  and  that  it  therefore  seeks  relief  throughout  the  territory  served  by  those  wire 
 centers.  70  In  its  Petition,  Qwest  filed  retail  market  data  regarding  the  entire  MSA,  without  disaggregating  the  state  of  competition  by  county,  zip  code,  wire  center  or  other  more  narrow  geographic  market.  71 

 24.  For  the  purposes  of  analyzing  dominant  carrier  regulation  of  Qwest  in  this  proceeding,  we  define  the  relevant  geographic  market  here  to  be  Qwests  service  area  in  the  Omaha  MSA.  72  Qwest  has 
 proposed  its  service  territory  as  the  market  and  submitted  its  case  consistent  with  that  definition,  so  we  begin  our  analysis  with  that  region  as  the  relevant  geographic  market  unless  the  record  indicates 
 compelling  reasons  to  narrow  it. 
 (Continued  from  previous  page)  01-  337,  Notice  of  Proposed  Rulemaking,  16  FCC  Rcd  22745,  22748,  para.  5;  see  also  Section  271  Broadband 
 Forbearance  Order,  19  FCC  Rcd  at  21506,  para.  22-  23.  Our  references  in  this  order  to  broadband  service  signify  high-  speed  rather  than  dial-  up  service. 

 66  All  special  access  services  are  addressed  in  the  enterprise  section,  below. 
 67  See,  e.  g.,  McLeodUSA  Comments  at  4  (contending  that  the  relevant  market  for  a  dominance  evaluation  is  the 
 wholesale  market  of  loops  and  transport);  TWTC  Comments  at  4-  5  (arguing  that  the  Commission  held  in  the  Triennial  Review  Order  that  the  mass  market,  small  and  medium  enterprise,  and  large  enterprise  segments  comprise 

 separate  markets  of  telecommunications  services). 
 68  See  Petition  at  1;  Qwest  Reply  at  17  (clarifying  that  Qwest  is  only  seeking  forbearance  in  the  territory  that  it 
 serves  within  the  Omaha  MSA). 
 69  See  Qwest  Reply  at  17.  Qwest  has  clarified  these  numbers  in  response  to  criticism  from  Cox  and  AT&  T  about 
 Qwests  initial  statement  in  its  Petition  that  there  are  only  five  counties  in  the  Omaha  MSA.  See  also  Cox  Comments  at  16;  AT&  T  Comments  at  7. 

 70  See  Petition  at  19-  20,  n.  60.  Qwest  states  that  it  seeks  relief  in  the  following  wire  centers  in  Nebraska: 
 Bennington,  Elkhorn-  Waterloo,  Gretna,  Omaha  78th  Street,  Omaha  84th  Street,  Omaha  90th  Street,  Omaha  Bellevue,  Omaha  135th  Street,  Omaha  Fort  Street,  Omaha  Fowler  Street,  Omaha  156th  Street,  Omaha  Izard  Street, 

 Omaha  Douglas,  Omaha  O  Street,  and  Springfield  and  Valley.  Qwest  also  seeks  relief  in  the  following  wire  centers  in  IA:  Council  Bluffs  Manawa,  Council  Bluffs  Downtown,  Crescent,  Glenwood-  Mineola,  Malvern,  Missouri 
 Valley,  Neola  and  Underwood.  Id. 
 71  Qwest  has  supplemented  certain  aspects  of  the  record  with  wire  center-  specific  data. 

 72  We  emphasize  that  we  make  no  findings  with  regard  to  the  service  territory  of  the  other  independent  LECs  in  the 
 Omaha  MSA. 
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 b.  Mass  Market  Services 
 25.  On  the  basis  of  the  evidence  of  competition  on  the  record  and  the  application  of  the  section  10(  a)  statutory  criteria,  we  conclude  that  enforcement  of  the  listed  dominant  carrier  regulations  for  mass 
 market  exchange  access  and  broadband  Internet  access  services  is  unwarranted.  In  particular,  we  find  most  persuasive  that  Cox  has  acquired  a  [REDACTED]  share  of  the  residential  access  market 
 [REDACTED]  Qwest,  and  that  Cox  has  [REDACTED]  share  of  the  broadband  Internet  access  market.  73  Our  forbearance  from  the  application  of  the  dominant  carrier  regulations  before  us  today  is  conditioned 
 upon  Qwests  compliance  with  competitive  carrier  requirements,  and  in  no  instance  is  Qwest  to  be  subject  to  less  regulation  than  any  competitive  LEC.  We  reach  these  conclusions  by  examining  the  state  of 
 competition  in  Qwests  service  territory  in  the  Omaha  MSA  for  mass  market  services,  including  market  share,  demand  and  supply  elasticities,  and  Qwests  size,  resources,  and  technical  capabilities. 

 (i)  Section  10(  a)(  1)    Charges,  Practices,  Classifications,  and  Regulations 
 26.  Section  10(  a)(  1)  requires  that  we  determine  whether  enforcement  of  the  regulations  at  issue  is  not  necessary  to  ensure  that  charges,  practices,  classifications  or  regulations  by  Qwest  are  not  unjustly  or 
 unreasonably  discriminatory.  74  In  its  Petition,  Qwest  argues  broadly  that  dominant  carrier  regulation  of  Qwests  local  telephone  services  in  the  Omaha  MSA  is  no  longer  necessary  to  ensure  that  Qwests  rates 
 and  practices  are  just,  reasonable  and  not  unreasonably  discriminatory,  and  that  Qwest  therefore  satisfies  the  criteria  of  Section  10(  a)(  1)  of  the  1996  Act.  75  More  specifically,  it  contends  that  the  Omaha  MSA 
 telecommunications  market  has  become  highly  competitive,  that  no  carrier  has  market  power,  and  that  there  is  no  longer  any  regulatory  justification  for  applying  unique  regulatory  requirements  to  any  single 
 carrier  as  dominant.  76  Qwest  asserts  that  requirements  other  than  dominant  carrier  regulation,  such  as  sections  201  and  202  of  the  Act,  are  sufficient  to  protect  consumers  from  any  carrier  attempting  to  charge 
 unreasonable  rates.  77 
 27.  We  conclude  that  the  Commissions  relevant  rules  on  dominant  carrier  price  caps,  rate  of  return,  tariffing,  rate  averaging,  and  discontinuance  are  no  longer  necessary  to  ensure  that  Qwests  rates 

 and  practices  are  just,  reasonable,  and  not  unjustly  or  unreasonably  discriminatory  for  the  services  in  the  product  market  at  issue  below.  We  recognize,  however,  the  special  problem  of  carriers  carrier  charges   

 73  See  infra  para.  28. 
 74  See  47  U.  S.  C.    160(  a)(  1). 
 75  See  Petition  at  32. 
 76  Id. 
 77  See  id.  at  33  (citing  47  U.  S.  C.    201,  202).  Section  201  of  the  Act  mandates  that  carriers  engaged  in  the 
 provision  of  interstate  or  foreign  communication  service  provide  service  upon  reasonable  request,  and  that  all  charges,  practices,  classifications,  and  regulations  for  such  service  be  just  and  reasonable.  47  U.  S.  C.    201.  Section 

 201  also  empowers  the  Commission  to  require  physical  connections  with  other  carriers,  to  establish  through  routes,  and  to  determine  appropriate  charges  for  such  actions.  Id.  Section  202  states  that  it  is  unlawful  for  any  common 
 carrier  to  make  any  unjust  or  unreasonable  discrimination  in  charges,  practices,  classifications,  regulations,  facilities,  or  services,  or  to  make  or  give  any  undue  or  unreasonable  preference  or  advantage  to  any  person  or  class 
 of  persons.  47  U.  S.  C.    202. 
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 that  all  LECs  have  monopoly  power  over  the  rates  that  they  charge  carriers  wishing  to  terminate  calls  to  LECs  end  user  customers.  Our  analysis  below  discusses  the  competitive  environment  in  general,  and 
 addresses  why  certain  dominant  carrier  regulations  are  not  necessary  to  check  Qwest  rates  and  practices  with  regard  to  its  own  end  users.  We  address  the  special  problem  of  carriers  carrier  charges  separately 
 below. 
 (a)  Market  Share 
 28.  Mass  Market  Switched  Access  Service.  For  this  factor,  we  find  compelling  that  Qwest  has  less  than  [REDACTED]  percent  of  the  market  for  residential  access  lines  in  Qwests  service  territory  in 
 the  MSA,  based  upon  Qwests  and  Coxs  own  submitted  data.  To  reach  a  determination  with  regard  to  the  mass  market  for  switched  access  services,  we  find  that  the  data  Qwest  and  Cox  have  submitted 
 regarding  residential  customers  are  a  reasonable  proxy  for  the  number  of  mass  market  customers  served  by  each  carrier.  78  Qwest  reports  that  as  of  December  2004,  it  had  [REDACTED]  residential  retail  access 
 lines.  79  Cox  submits  that  as  of  May  1,  2005,  it  had  [REDACTED]  residential  lines.  80 
 29.  Although  we  are  confident  that  the  evidence  in  this  record  demonstrates  that  Qwest  has  less  than  [REDACTED]  of  the  relevant  share  of  the  mass  market  for  switched  access,  we  are  unable  to 

 calculate  an  absolute  figure  based  on  that  record.  81  No  state  regulatory  compilations  of  the  number  of  access  lines  for  the  geographic  market  in  question  were  submitted  in  this  proceeding,  and  no  carriers  other 
 than  Qwest  or  Cox  submitted  data  in  this  proceeding  detailing  the  number  of  residential  access  lines.  Our  market  share  estimates  are  also  supported  by  Qwests  evidence  regarding  E911  data.  Relying  on 
 estimates  from  an  E911  database  administrator  from  April  2004  as  a  directional  surrogate  for  the  number  of  access  lines  served  by  facilities-  based  CLECs,  in  combination  with  competitive  LEC  resale  and  UNE-P 
 data  as  of  February  2004  and  its  own  retail  access  line  data,  Qwest  submits  that  the  competitive  LEC 

 78  Although  the  Commissions  customer  class  distinction  for  assessment  of  dominance  traditionally  distinguishes 
 between  mass  market  customers  and  enterprise  market  customers,  Qwest  and  Cox  submitted  their  customer  data  grouped  in  categories  of  residential  customers  and  business  customers.  Due  to  these  similarities  between  the 

 kinds  of  services  that  residential  customers  and  very  small  business  customers  purchase,  as  well  as  how  carriers  market  and  provide  service  to  them,  we  find  that  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.  It  therefore  is  reasonable  for  us  to  treat  the  data  Qwest  and  Cox  have  submitted  regarding 
 residential  customers  as  a  proxy  for  the  number  of  mass  market  customers  served  by  each  carrier.  Even  if  Qwest  and  Cox  have  omitted  very  small  businesses  from  their  residential  access  line  counts,  this  omission  would  have  only 
 a  negligible  affect  on  our  analysis  of  this  market. 
 79  Letter  from  Cronan  OConnell,  Vice  President    Federal  Regulatory  Affairs,  Qwest,  to  Marlene  H.  Dortch, 
 Secretary,  FCC,  WC  Docket  No.  04-  223,  Attach.  1  at  5  (filed  May  20,  2005)  (Qwest  May  20,  2005  Ex  Parte  Letter).  Qwests  retail  access  line  base  in  the  Omaha  MSA  has  declined  by  [REDACTED]  percent  over  the  last 

 several  years,  falling  from  [REDACTED]  in  December  1997.  Id. 
 80  Letter  from  J.  G.  Harrington,  Counsel  to  Cox,  to  Marlene  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223  at  3 
 (filed  Jun.  30,  2005)  (Cox  June  30,  2005  Ex  Parte  Letter). 
 81  See  supra  para.  28. 
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 market  share  of  residential  access  lines  in  Qwests  service  territory  in  the  Omaha  MSA  is  [REDACTED]  percent.  82 
 30.  Mass  Market  Broadband  Internet  Access  Service.  Qwest  has  [REDACTED]  of  the  market  for  broadband  Internet  access  service.  Cox  does  not  dispute  Qwests  contention  that  Cox  [REDACTED] 
 of  the  broadband  subscriber  base  in  the  Omaha  MSA.  Qwest  submits  that,  based  on  Coxs  national  cable  modem  subscribership  penetration  rate  of  24.6  percent,  Cox  has  approximately  86,000  cable  modem 
 subscribers  in  the  Omaha  MSA,  compared  to  [REDACTED]  DSL  subscribers  for  Qwest  as  of  December  2004.  83  Cox  confirms  that  Qwests  figure  is  a  reasonable  estimate  of  Coxs  broadband  Internet  access 
 base.  84  Again,  while  we  are  unable  to  calculate  a  precise  market  share  figure  based  on  the  record  before  us  in  this  proceeding,  there  is  no  dispute  that  Coxs  mass  market  broadband  Internet  access  subscriber 
 base  [REDACTED]  Qwests. 
 (b)  Market  Elasticities  and  Structure 
 31.  Apart  from  strict  measurement  of  market  share,  as  part  of  our  forbearance  analysis  we  also  examine  other  economic  factors  relevant  to  determining  whether  enforcement  of  dominant  carrier 
 regulation  is  necessary  to  ensure  that  Qwests  practices  in  offering  interstate  mass  market  switched  access  services  are  just,  reasonable,  and  not  unjustly  or  unreasonably  discriminatory.  In  reaching  conclusions 
 regarding  dominance,  the  Commission  looks  beyond  market  share,  and  evaluates  factors  such  as  demand  and  supply  elasticities,  and  the  firms  cost,  structure,  size  and  resources.  85  While  not  controlling,  such 
 indicia  can  be  of  relevance  to  our  analysis,  so  we  examine  them  accordingly. 
 32.  Demand  Elasticity.  A  firms  demand  elasticity  refers  to  the  willingness  and  ability  of  a  firms  customers  to  switch  to  another  provider  or  otherwise  change  the  amount  of  services  they  purchase 

 from  that  firm  in  response  to  a  change  in  price  or  quality  of  the  service  at  issue.  86  High  firm  demand  elasticity  indicates  customer  willingness  and  ability  to  switch  to  another  service  provider  in  order  to 
 obtain  price  reductions  or  desired  features.  Moreover,  it  also  indicates  that  the  market  for  that  service  is  subject  to  competition.  87 

 82  Qwest  Teitzel  Aff.  at  6-  8.  Qwest  has  transitioned  90  percent  of  all  of  its  UNE-  P  facilities  region-  wide  to  the 
 Qwest  Platform  Plus  (QPP)  commercial  product.  Qwest  May  20,  2005  Ex  Parte  Letter  at  2.  Although  Qwests  Petition  indicates  that  the  E911  database  records  are  from  communities  in  the  Omaha  MSA,  Qwest  Teitzel  Aff.  at  7, 

 Qwest  later  clarifies  that  the  line  counts  in  the  Petition  reflect  only  .  .  .  E911  records  in  the  wire  centers  in  Qwests  serving  territory  in  the  MSA.  Qwest  May  20,  2005  Ex  Parte  Letter,  Attach.  1,  Tab  5. 

 83  Qwest  May  20,  2005  Ex  Parte  Letter,  Attach.  1  at  17. 
 84  Letter  from  J.  G.  Harrington,  Counsel  to  Cox,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223, 
 Attach.  at  1  (filed  Sept.  15,  2005). 
 85  Petition  Pursuant  to  Section  10(  c)  of  the  Communications  Act  of  1934,  as  Amended,  for  Forbearance  from 
 Dominant  Carrier  Regulation  and  for  Reclassification  as  a  Non-  Dominant  Carrier,  Order  and  Notice  of  Proposed  Rulemaking,  13  FCC  Rcd  14083,  14118-  19,  para.  67  (1998)  (Comsat  Order);  see  also  AT&  T  v.  FCC,  236  F.  3d  at 

 731. 
 86  Comsat  Order,  13  FCC  Rcd  at  14120,  para.  71. 

 87  Id. 
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 33.  In  assessing  demand  elasticities  for  mass  market  exchange  access  services,  we  recognize  here  as  we  did  in  the  CLEC  Access  Charge  Order  that  competitive  carriers  serve  two  distinct  customer  groups 
   end  users  for  long  distance  calls,  and  interexchange  carriers.  88  With  regard  to  the  end  user  market,  we  find  the  demand  elasticity  in  the  mass  market  interstate  exchange  access  market  to  be  high.  The 
 Commission  has  repeatedly  found  that  residential  customers  are  highly  demand-  elastic,  and  willing  to  switch  to  or  from  their  provider  to  obtain  price  reductions  and  desired  features.  89  Nothing  in  this  record 
 indicates  otherwise  for  residential  or  other  mass  market  customers,  and  the  growth  in  Coxs  residential  access  line  base  and  corresponding  decline  in  Qwests  base,  as  described  above,  fully  supports  our 
 forbearance  determination  here.  As  for  concerns  of  interexchange  carriers  inability  to  switch  providers  and  the  terminating  access  monopoly,  we  explain  below  that  we  impose  upon  Qwest  the  same  obligations 
 as  all  other  competitive  LECs  as  a  condition  of  our  relief,  and  conditionally  modify  the  pricing  mechanism  for  carriers  carrier  charges.  90 

 34.  We  make  a  similar  finding  of  high  demand  elasticity  for  mass  market  broadband  Internet  access  services.  In  previous  decisions,  the  Commission  has  determined  that  customers  can  and  do  choose 
 between  competing  DSL  and  cable  modem  providers,  and  the  record  in  the  instant  proceeding  is  consistent  with  those  cases.  91 

 35.  Supply  Elasticity.  In  general,  supply  elasticity  refers  to  the  ability  of  suppliers  in  a  given  market  to  increase  the  quantity  of  service  supplied  in  response  to  an  increase  in  price.  The  Commission 
 uses  this  to  determine  the  ability  of  alternative  suppliers  in  a  relevant  market  to  absorb  a  carriers  customers  if  such  carrier  raised  the  price  of  its  service  by  a  small  but  significant  amount  and  its  customers 
 wished  to  change  carriers  in  response.  92  Two  factors  determine  supply  elasticity:  (1)  whether  existing  competitors  have  or  can  relatively  easily  acquire  significant  additional  capacity,  in  which  case  supply 
 elasticities  are  high,  and  (2)  the  absence  of  significant  barriers  to  entry,  be  they  legal  (e.  g.,  government  imposed  restrictions),  economic  (e.  g.,  capital  costs,  economies  of  scale),  technological  (e.  g.,  a  new 
 innovation  protected  by  a  patent),  or  operational  (e.  g.,  lack  of  skilled  workers).  93 
 36.  The  record  of  competition  compiled  in  this  proceeding  and,  significantly,  the  other  market-opening  regulations  that  we  leave  in  place  today,  support  our  finding  that  supply  elasticity  in  this  market 

 88  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)  (CLEC  Access  Charge  Reform  Order). 

 89  Motion  of  AT&  T  Corp.  to  be  Reclassified  as  a  Non-  Dominant  Carrier,  FCC  95-  427,  Order,  11  FCC  Rcd  3271, 
 3305,  para.  63  (1995)  (AT&  T  Reclassification  Order). 
 90  See  infra  paras.  39-  41. 

 91  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  21496,  21506,  para.  22;  Review  of  Regulatory 
 Requirements  for  Incumbent  LEC  Broadband  Telecommunications  Services,  CC  Docket  No.  01-  337,  Notice  of  Proposed  Rulemaking,  16  FCC  Rcd  22745,  22748,  para.  5;  Applications  of  Nextel  Communications,  Inc.  and  Sprint 

 Corporation  for  Consent  to  Transfer  Control  of  Licenses  and  Authorizations,  WT  Docket  No.  05-  63,  Memorandum  Opinion  and  Order,  FCC  05-  148,  para.  167  (rel.  Aug.  8,  2005). 

 92  Comsat  Order,  13  FCC  Rcd  at  14123,  para.  78. 
 93  See  id.  at  14123-  24,  para.  78;  see  AT&  T  Reclassification  Order,  11  FCC  Rcd  at  3303,  para.  57. 
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 is  high  for  all  mass  market  services.  Coxs  extensive  facilities  build-  out  in  the  Omaha  MSA,  and  growing  success  in  luring  Qwests  mass  market  customers,  indicates  that  the  first  factor  is  easily  satisfied  for  both 
 switched  access  and  broadband  Internet  access  services.  94  Moreover,  with  regard  to  switched  voice  services,  the  number  of  resold  lines  and  QPP  lines  are  also  not  insignificant.  95 

 37.  For  many  of  the  same  reasons  as  above,  we  find  that  the  barriers  to  entry  in  the  Omaha  MSA  for  switched  access  services  are  low.  We  are  mindful  that  this  determination  relies  heavily  on  the 
 availability  of  section  251(  c)  and  other  pro-  competitive  regulations  that  we  leave  undisturbed  in  this  Order.  In  particular,  our  rejection  of  Qwests  request  for  forbearance  from  its  section  251(  c)  duty  to 
 provide  interconnection  and  collocation  at  cost-  based  rates,  as  well  its  obligation  to  proved  resale  at  avoided  cost  rates,  helps  to  ensure  that  existing  and  new  competitors  can  enter  the  exchange  access 
 market.  Our  decision  to  deny  Qwests  request  for  forbearance  from  all  section  251(  c)  and  271  obligations    other  than  those  arising  under  section  251(  c)(  3)  regarding  transmission  facilities,  and  the  section  271 
 checklist  requirements  that  correlate  to  those  section  251(  c)(  3)  transmission  facilities    addresses  many  of  the  concerns  raised  by  the  Iowa  and  Nebraska  commissions  in  particular,  96  as  well  as  other  commenters.  97 

 38.  Firm  Cost,  Size,  Resources.  We  find  that  the  record  before  us  is  consistent  with  forbearance  in  the  context  of  mass  market  switched  access  and  broadband  Internet  access  services  because  compared 
 to  Cox,  Qwest  does  not  have  sufficiently  lower  costs,  sheer  size,  superior  resources,  financial  strength,  or  technical  capabilities  to  warrant  retaining  the  regulations  in  question.  Under  the  relevant  precedent,  the 
 issue  at  this  point  in  our  dominance  analysis  would  be  not  whether  Qwest  has  advantages,  but  whether  any  such  advantages  are  so  great  to  preclude  the  effective  functioning  of  a  competitive  market.  98  We 

 94  We  describe  Coxs  build-  out  in  Part  III.  E.  1.  c.(  ii),  supra. 
 95  Qwest  reports  that  it  provides  at  least  [REDACTED]  QPP  residential  lines.  See  Qwest  May  20,  2005  Ex  Parte 
 Letter,  Attach.  1  at  Tab  8.  Qwest  also  reports  that  as  of  April  2004,  provided  to  its  competitors  [REDACTED]  resold  residential  lines,  and  [REDACTED]  UNE-  P  residential  lines.  Qwest  Teitzel  Aff.  at  8.  As  noted  above, 

 Qwest  has  transitioned  90  percent  of  all  of  its  UNE-  P  facilities  region-  wide  to  the  QPP  commercial  product.  See  supra  note  82. 

 96  With  regard  to  Council  Bluffs,  which  is  part  of  Qwests  service  territory  in  the  Omaha  MSA,  the  Iowa  Utilities 
 Board  comments  that  [  t]  he  Council  Bluffs  retail  market  has  developed  a  level  of  competition  that  was  envisioned  by  the  passing  of  the  1996  Telecommunications  Act,  but  that  [  i]  f  the  level  of  retail  competition  in  the  Council 

 Bluffs  market  is  to  remain  at  its  current  level  or  improve,  competitors  will  need  to  have  access  to  the  wholesale  facilities  and  services  as  they  do  today.  Iowa  Utils.  Bd.  Comments  at  3-  4.  The  Iowa  Utilities  Board  goes  on  to 
 express  particular  concerns  about  removing  certain  requirements  of  interconnection,  namely,  the  duty  to  negotiate  in  good  faith;  providing  facilities  and  equipment;  allowing  nondiscriminatory  access  and  interconnection  to  network 
 elements  and  facilities;  allowing  physical  collocation;  and  providing  retail  services  at  wholesale  rates  for  resale  by  competitors.  Id.  at  4.  In  disagreeing  with  Qwests  request  for  forbearance,  the  Nebraska  Commission  notes  that  all 
 competitive  LECs  still  rely  heavily  on  sections  251(  c)  and  271,  and  highlighted  the  obligations  to  interconnect  at  any  point;  to  allow  collocation;  and  to  negotiate  in  good  faith.  Nebraska  PSC  Comments  at  1-  2. 

 97  See,  e.  g.,  McLeodUSA  Comments  at  7-  8  (  McLeodUSA  submits  that  the  fact  that  competitors  have  been  able  to 
 increase  their  number  of  lines  is  simply  because  they  are  able  to  obtain  the  bottleneck  facilities  controlled  by  Qwest  under  the  specific  terms  of  Section  251  and  271.). 

 98  See  AT&  T  Reclassification  Order,  11  FCC  Rcd  at  3309,  para.  73,  citing  First  Interexchange  Competition  Order,  6 
 FCC  Rcd  at  5891-  92. 
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 find  that  even  if  Qwest  has  some  advantages  regarding  lower  costs,  sheer  size,  superior  resources,  financial  strength,  or  technical  capabilities    an  issue  we  do  not  decide  in  the  abstract    Qwest  does  not 
 have  such  advantages  relative  to  Cox  in  the  Omaha  MSA.  The  record  reveals  that  Qwests  most  significant  competitor  in  the  Omaha  MSA  is  Cox.  99  Cox,  like  Qwest,  is  a  large  business  that  competes  in 
 numerous  states  in  the  provision  of  a  range  of  telecommunications  services  with  demonstrated  technical  capabilities.  100  For  instance,  Cox  readily  submits  that  it  is  the  leading  competitive  provider  of  facilities-based 
 local  telephone  service,  with  well  over  one  million  lines  in  service.  101  Qwest  also  is  subject  to  competition  from  other  established  carriers  in  the  Omaha  MSA  of  significant  size.  102  There  is  no 
 evidence  in  the  record  to  indicate  that  Qwest  could  leverage  the  factors  relevant  here  to  sustain  prices  profitably  above  the  competitive  level. 

 (c)  Specific  Forbearance  Granted 
 39.  Price  Cap  and  Tariffing  Forbearance  for  Exchange  Access  Services.  Due  to  Qwests  loss  of  [REDACTED]  residential  access  lines  and  our  analysis  of  the  other  factors  above,  103  we  find  that,  subject 
 to  certain  conditions,  enforcement  of  our  dominant  carrier  price  cap  rules  is  not  necessary  to  ensure  that  Qwests  charges,  practices,  or  regulations  are  just,  reasonable,  and  not  unjustly  or  unreasonably 
 discriminatory  with  regard  to  the  prices  Qwest  charges  to  its  own  end  users.  We  conclude  that  enforcing  price  caps  is  not  necessary,  and  we  forbear  from  those  regulations  accordingly.  We,  however,  condition 
 our  forbearance  from  applying  section  61.41  price  caps  to  Qwests  mass  market  access  service  charges  on  Qwests  compliance  with  regulations  that  apply  to  all  competitive  LECs,  in  particular  section  61.26  of  the 
 Commissions  rules. 
 40.  In  the  CLEC  Access  Charge  Reform  Order,  the  Commission  found  that  interexchange  carriers  are  subject  to  the  monopoly  power  that  all  competitive  LECs  wield  over  access  to  their  end  users,  and  that 

 carriers  carrier  charges  cannot  be  fully  deregulated.  104  As  a  result,  the  Commission  has  imposed  a  detariffing  regime  through  section  61.26  that  permits  the  filing  of  tariffs  on  one  days  notice  without  cost 
 support  (and  presumes  the  access  charges  that  competitive  LECs  charge  their  carrier  customers  to  be  just  and  reasonable)  where  the  rates  are  at  or  below  a  benchmark  that  is  the  rate  of  the  competing  ILEC.  105 
 Competitive  LECs  are  subject  to  mandatory  detariffing  of  any  rates  that  exceed  the  benchmark;  106 
 99  Petition  at  8-  9;  Qwest  Teitzel  Aff.  at  8. 

 100  See,  e.  g.,  Qwest  Teitzel  Aff.  at  10-  13. 
 101  Cox  Comments  at  1.  Cox  also  provides  a  number  of  business  services  at  the  national  level,  which  presumably 
 would  tend  to  increase  its  purchasing  power  with  suppliers.  Qwest  Teitzel  Aff.  at  12  (claiming  that  at  EOY  2002,  Cox  Business  Services  was  realizing  almost  $1.2M  per  month  in  revenue,  from  almost  16,000  business 

 customers). 
 102  See,  e.  g.,  Qwest  Teitzel  Aff.  at  18  (citing  McLeodUSAs  fourth  quarter  and  total  year  2003  results  disclosing  that 
 nationwide  McLeodUSA  serves  approximately  28,000  customers  valued  at  $9.5  million  of  revenue). 
 103  See  supra  paras.  28-  38. 

 104  CLEC  Access  Charge  Reform  Order,  16  FCC  Rcd  at  9938,  para.  38. 
 105  Id.  at  9925,  para.  3;  see  also  47  C.  F.  R.    61.26. 
 106  CLEC  Access  Charge  Reform  Order,  16  FCC  Rcd  at  9938,  para.  40. 
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 otherwise,  the  Commission  does  not  regulate  the  rates  charged  pursuant  to  any  other  arrangement  that  competitive  LECs  may  reach  with  interexchange  carriers. 
 41.  To  ensure  that  our  forbearance  today  does  not  result  in  rates  that  are  unjust  or  unreasonable,  and  in  light  of  the  unique  nature  of  the  access  market,  107  we  therefore  condition  this  forbearance  upon 
 the  same  regime  under  which  competitive  LECs  currently  operate.  Specifically,  we  extend  to  Qwest  the  current  benchmark  that  applies  to  all  of  its  competitors    Qwests  tariffed  rate  as  of  July  1,  2005    which 
 will  also  serve  as  the  benchmark  for  other  LECs  operating  within  Qwests  service  territory  in  the  MSA.  Thus,  if  Qwest  charges  switched  access  rates  to  its  carrier  customers  equal  to  or  below  this  benchmark,  it 
 is  not  required  to  file  a  tariff  at  all,  or  may  file  a  tariff  on  one  days  notice  without  cost  support.  If  it  charges  more,  it  may  not  file  a  tariff.  108  As  with  competitive  LECs,  we  impose  no  such  restriction  on  the 
 rates  Qwest  may  charge  its  own  end  user  customers.  Rather,  for  the  reasons  stated  above,  we  believe  competitive  forces  are  sufficient  to  constrain  those  rates.  For  these  reasons,  we  also  forbear  from 
 applying  any  dominant  carrier  tariffing  requirements  to  Qwest  for  mass  market  switched  access  services,  conditioned  upon  its  compliance  with  the  same  permissive  detariffing  obligations  that  apply  to  Cox  and 
 other  competitive  LECs. 
 42.  Rate  of  Return  and  Tariffing  Forbearance  for  Broadband  Internet  Access  Services.  We  find  that  continued  application  of  our  section  61.38  cost  support  and  Part  65  rate  of  return  regulations  to 

 Qwests  broadband  Internet  access  transmission  services  is  not  necessary  to  ensure  that  Qwests  charges,  practices,  or  regulations  are  just,  reasonable,  and  not  unjustly  or  unreasonably  discriminatory  so  long  as 
 Qwest  is  subject  to  the  same  treatment  as  non-  dominant  carriers  under  those  rules.  Continuing  to  subject  Qwest  to  these  rules  for  its  DSL  services  is  no  longer  appropriate  in  light  of  its  place  in  the  broadband 
 Internet  access  market  in  Qwests  service  territory  in  the  Omaha  MSA.  Qwests  DSL  offering  need  not  be  regulated  any  more  than  that  of  any  other  competitive  LEC  to  prevent  improper  discrimination.  Thus, 
 Qwest  may  file  tariffs  on  one  days  notice  without  cost  support,  or  may  file  no  tariffs. 
 43.  Discontinuance  and  Streamlined  Transfer  of  Control  Forbearance.  For  all  mass  market  switched  access  and  broadband  Internet  access  services,  we  find  that  continued  application  of  our 

 dominant  carrier  discontinuance  rules  is  not  necessary  to  ensure  that  Qwests  charges,  practices,  or  regulations  are  just,  reasonable,  and  not  unjustly  or  unreasonably  discriminatory  so  long  as  Qwest  is 
 subject  to  the  same  treatment  as  non-  dominant  carriers  under  those  rules.  109  We  conclude  that  subjecting  Qwest  to  a  60-  day  automatic  grant  period  for  discontinuance  of  service,  and  a  30-  day  comment  period  for 

 107  Id.  at  9938,  para.  39. 
 108  We  reject  Coxs  proposal  that,  to  the  extent  relief  is  granted,  the  Commission  allow  competitive  LECs  in  Omaha 
 to  maintain  their  access  charge  rates  for  no  less  than  60  days  after  Qwest  changes  its  tariffed  rates.  Cox  Comments  at  37.  Cox  argues  that  in  order  for  a  competitive  LEC  to  keep  its  rates  at  or  below  the  incumbent  LECs,  it  must 

 have  adequate  notice  of  the  incumbent  LECs  rates  so  that  it  has  the  opportunity  to  analyze  Qwests  new  rate,  to  determine  whether  it  is  reasonable,  and  to  decide  whether  to  adjust  its  own  rate  to  conform  to  Qwests  rate  or  to 
 challenge  the  new  rate  as  unreasonable  under  Sections  201  and  208  of  the  Act.  Id.  at  37-  38.  Because  we  subject  Qwest  to  the  CLEC  Access  Charge  Reform  Orders  benchmark  regime,  we  do  not  share  MCIs  concern  that  price 
 caps  are  necessary  because  the  Commission  previously  has  found  that  the  switched  access  market  is  not  structured  to  constrain  competitive  LEC  rates.  MCI  Comments  at  16-  17  (citing  CLEC  Access  Charge  Reform  Order,  16  FCC 
 Rcd  at  9936,  para.  33). 
 109  47  C.  F.  R.    63.03(  b)(  2),  63.71(  a)(  5),  (b)(  4),  (c). 
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 affected  customer  notice,  is  not  necessary  under  section  10(  a)(  1),  where  Cox  and  other  competitive  LECs  are  subject  to  a  30-  day  automatic  grant  period  and  15-  day  comment  period.  Where  the  majority  of 
 customers  have  selected  carriers  other  than  Qwest,  we  find  that  continuing  to  impose  more  onerous  discontinuance  requirements  is  no  longer  necessary  to  ensure  just,  reasonable,  and  not  unjustly  or 
 unreasonably  discriminatory  charges  and  practices.  However,  to  maintain  sufficient  customer  protection  to  ensure  the  justness  and  reasonableness  of  Qwests  practices,  we  predicate  this  relief  upon  Qwests 
 compliance  with  the  discontinuance  rules  that  apply  to  non-  dominant  carriers.  Similarly,  we  forbear  from  applying  our  streamlined  transfer  of  control  rules  to  Qwest  as  a  dominant  carrier,  conditioned  upon 
 treatment  of  Qwest  as  a  non-  dominant  carrier. 
 (ii)  Section  10(  a)(  2)    Protection  of  Consumers 
 44.  The  second  criterion  under  section  10  requires  that  we  assess  whether  enforcement  of  our  dominant  carrier  regulations  to  mass  market  interstate  switched  access  and  mass  market  broadband 

 Internet  access  services  is  unnecessary  for  the  protection  of  consumers.  110  Qwest  claims  that  it  satisfies  the  criteria  of  section  10(  a)(  2)  because  the  high  level  of  facilities-  based  competition,  the  lack  of  entry 
 barriers,  and  the  vitality  of  existing  competitors  will  provide  all  the  product,  price,  service  and  choice  protection  that  consumers  need.  111  It  further  argues  that  customers  in  the  Omaha  MSA  are  being 
 deprived  of  the  full  benefits  of  competition  because  of  the  continued  regulation  of  Qwest  as  a  dominant  carrier.  112 

 45.  For  many  of  the  same  reasons  that  led  us  to  conclude  that  section  10(  a)(  1)  is  satisfied,  we  also  conclude  that  section  10(  a)(  2)  is  satisfied  with  regard  to  a  limited  set  of  dominant  carrier  regulation   
 price  caps,  rate  of  return,  tariffing  and  section  214  regulation.  Most  notably,  in  light  of  Coxs  capture  of  [REDACTED]  residential  access  lines  compared  to  Qwests  [REDACTED],  continuing  to  subject 
 Qwest  to  these  requirements  does  not  enhance  consumer  protection.  113  Subjecting  Qwest  to  heightened  price  cap  and  rate  of  return  regulation  simply  hinders  its  efforts  to  compete  to  re-  acquire  these  customers 
 and  does  not  protect  consumers.  In  the  interest  of  enhancing  customer  choice,  forbearance  is  warranted,  and  we  find  that  the  dominant  carrier  regulations  at  issue  are  no  longer  necessary  to  protect  consumers. 

 (iii)  Section  10(  a)(  3)    Public  Interest 
 46.  The  third  criterion  of  section  10  requires  that  we  determine  whether  forbearance  from  applying  our  dominant  carrier  regulations,  including  our  tariff  filing  requirements,  our  section  214 

 transfer  requirements,  and  our  price  cap  regulations  is  consistent  with  the  public  interest.  114  In  making  this  determination,  the  Commission  shall  consider  whether  forbearance  will  promote  competitive  market 
 conditions,  including  the  extent  to  which  forbearance  will  enhance  competition  among  providers  of 

 110  47  U.  S.  C.    160(  a)(  2). 
 111  Petition  at  34. 
 112  Petition  at  35. 
 113  See  supra  nn.  79,  80. 
 114  47  U.  S.  C.    160(  a)(  3). 
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 telecommunications  services.  115  Qwest  argues  that  if  the  Commission  continues  to  regulate  it  as  a  dominant  carrier  in  the  Omaha  MSA  telecommunications  market,  it  will  hobble  Qwests  ability  to 
 compete  for  customers,  and  would  continue  competitive  distortions  that  do  not  serve  the  public  interest.  116  Qwest  also  notes  that  in  the  AT&  T  Non-  Dominance  Order,  the  Commission  describes  the 
 significant  costs  of  continued  asymmetric  regulation.  117  Qwest  insists  that  continued  dominant  carrier  regulation  of  its  services  in  the  Omaha  MSA  will  involve  these  same  costs.  118 

 47.  Similarly,  we  conclude  that  forbearing  from  our  dominant  carrier  regulations  that  apply  to  interstate  switched  access  and  broadband  Internet  access  services  is  consistent  with  the  public  interest.  119 
 Specifically,  we  find  that  it  will  enhance  the  vigorous  local  exchange  competition  that  has  emerged  in  the  Omaha  MSA,  and  will  serve  the  public  interest,  if  we  no  longer  apply  to  Qwest  the  dominant  carrier 
 regulations  that  apply  to  such  services,  including  our  tariff  filing  requirements,  our  section  214  requirements,  and  our  price  cap  regulations.  120  As  stated  above,  Qwest  serves  less  than  [REDACTED] 
 percent  of  the  residential  access  lines  in  the  interstate  exchange  access  services  market  in  the  Omaha  MSA    a  market  with  high  supply  and  demand  elasticities  for  end  user  customers.  121  Qwests  share  of  the 
 broadband  market  is  [REDACTED].  122  In  these  environments  that  are  competitive  for  end  users,  applying  these  dominant  carrier  regulations  to  Qwest  limits  its  ability  to  respond  to  competitive  forces 
 and,  therefore,  its  ability  quickly  to  offer  consumers  new  pricing  plans  or  service  packages. 
 48.  We  do  not  believe  that  a  lack  of  regulation  will  harm  end  user  competition  or  consumers.  For  instance,  regarding  price  cap  requirements  and  end  user  selection  of  competing  providers,  we  believe  that 

 market  pressures  created  by  Cox  and  others  will  force  Qwest  to  price  its  mass  market  interstate  exchange  access  services  competitively,  or  face  further  loss  of  market  share  for  these  services.  123  As  another 

 115  47  U.  S.  C.    160(  b). 
 116  Petition  at  36. 
 117  Id.  (pointing  to  the  Commissions  description  of  the  disincentives  to  innovate  due  to  loss  of  the  so-  called  first-mover 
 advantage  caused  by  longer  tariff  notices;  the  disincentive  for  AT&  T  to  reduce  prices;  the  ability  of  AT&  Ts  competitors  to  delay  and  undermine  its  initiatives;  and  the  unique  administrative  and  overhead  costs  on 

 both  AT&  T  and  the  Commission  which  flowed  into  AT&  Ts  prices). 
 118  See  Petition  at  36.  Qwest  states  that  the  15-  day  tariff  notice  requirement  that  applies  to  it  gives  competitive 
 LECs  the  opportunity  to  respond  to  Qwests  filed  rate  service  changes  or  to  get  to  market  first  with  a  new  price  or  service  offering  before  Qwests  tariff  becomes  effective.  Qwest  further  states  that,  as  a  dominant  carrier,  it  is  also 

 uniquely  prohibited  from  responding  to  competition  with  deaveraged  rates  within  the  study  area.  Id. 
 119  47  U.  S.  C.    160(  a)(  3). 

 120  In  making  our  determination  under  section  10(  a)(  3),  Congress  has  directed  the  Commission  to  consider  whether 
 forbearance  will  promote  competitive  market  conditions,  including  the  extent  to  which  forbearance  will  enhance  competition  among  providers  of  telecommunications  services.  See  47  U.  S.  C.    160(  b). 

 121  See  supra  para.  28. 
 122  See  supra  para.  30. 
 123  Again,  we  rely  on  the  benchmark  condition  described  above  to  correct  for  the  fact  that  the  access  service  market 
 otherwise  does  not  allow  competition  to  discipline  rates. 
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 example,  and  for  the  same  reason,  we  conclude  that  no  longer  enforcing  against  Qwest  requirements  that  it  provide  cost-  support  for  its  tariffs  as  currently  required  by  section  61.49  of  the  Commissions  rules  is 
 consistent  with  the  public  interest.  124  Significantly,  we  also  find  that  our  conditional  price  cap  benchmark  is  a  protection  against  harming  competitive  harms.  Again,  we  believe  that  Qwest  is  subject  to  sufficient 
 competition  from  Cox  that  it  will  price  its  mass  market  interstate  switched  access  and  mass  market  broadband  services  competitively  without  this  level  of  burdensome  regulatory  oversight. 

 49.  Indeed,  as  Qwest  argues,  forbearing  from  the  application  to  Qwest  of  these  dominant  carrier  requirements  will  increase  competition  in  the  market  by  freeing  Qwest  from  unnecessary  regulatory 
 burdens.  At  a  minimum,  we  believe  that  forbearing  from  dominant  carrier  regulation  in  the  Omaha  MSA  will  serve  the  public  interest  by  increasing  the  regulatory  parity  among  providers  of  mass  market 
 interstate  exchange  access  services  in  the  Omaha  MSA.  As  a  result  of  our  decision  today,  the  playing  field  between  Qwest  and  Cox  will  be  leveled  to  the  extent  Qwest  will  no  longer  be  the  only  carrier  in  its 
 service  territory  in  the  Omaha  MSA  subject  to  dominant  carrier  regulations  that  apply  to  mass  market  interstate  exchange  access  services.  In  light  of  the  fact  that  Qwests  share  of  this  market,  when  compared 
 with  Coxs  share,  is  [REDACTED],  we  believe  this  outcome  is  warranted  and  serves  the  public  interest.  125  For  DSL  services,  where  the  market  share  is  approximately  86,000  for  Cox  compared  to 
 [REDACTED]  for  Qwest,  the  regulatory  parity  policy  is  even  more  compelling.  126 
 c.  Enterprise  Services 
 50.  We  deny  Qwests  request  for  forbearance  with  regard  to  enterprise  services  due  to  a  lack  of  serving  area-  wide  information  for  the  Omaha  MSA.  The  precedent  relevant  to  the  Commissions 
 assessment  of  dominance  consistently  has  distinguished  between  mass  market  and  enterprise  services,  127  and  that  distinction  guides  our  analysis  here.  Instead,  Qwest  has  submitted  its  case  for  a  broader  product 
 market.  128  Qwest  has  not  provided  sufficient  data  for  its  service  territory  for  the  entire  MSA  to  allow  us  to  reach  a  forbearance  determination  under  section  10(  a)  for  the  enterprise  market,  and  we  therefore  deny 
 this  aspect  of  the  Petition.  129 

 124  47  C.  F.  R.    61.49. 
 125  See  supra  para.  28. 
 126  See  supra  para.  30. 
 127  See,  e.  g.,  WorldCom/  MCI  Order,  13  FCC  Rcd  at  18040-  42,  paras.  24-  29. 
 128  Petition  at  6  (seeking  forbearance  from  the  market  for  services  provided  under  Section  251(  c)  and  selected 
 services  under  Section  271  provided  within  the  boundaries  of  the  Omaha  MSA). 
 129  As  we  explain  above,  although  Qwest  seeks  forbearance  relief  from  dominant  carrier  regulations  rather  than  a 
 declaratory  ruling  that  it  is  non-  dominant,  in  light  of  the  overlap  between  the  forbearance  criteria  of  section  10  and  the  Commissions  dominance  analysis,  the  forbearance  analysis  from  dominant  regulation  we  undertake  today  is 

 informed  by  the  Commissions  precedent  analyzing  a  carriers  market  power.  See  supra  para.  17.  Historically,  the  Commission  has  employed  different  geographic  market  definitions  to  carry  out  the  differing  statutory,  economic, 
 and  policy  goals  of  the  proceeding  at  hand,  and  our  approach  to  markets  in  this  forbearance  proceeding  tracks  the  Commissions  precedent  regarding  what  is  the  appropriate  geographic  market  for  analysis.  For  example,  when 
 evaluating  whether  certain  network  elements  should  be  made  available  on  an  unbundled  basis,  which  implicates  issues  of  economic  self-  provisioning,  the  Commission  has  focused  its  analysis  on  wire  centers,  which  also  is  the 
 (continued.) 
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 C.  Fully  Implemented 
 51.  As  a  threshold  matter,  we  must  consider  whether  section  10(  d)  bars  the  forbearance  relief  Qwest  seeks  from  section  271  and  section  251(  c)  requirements.  Section  10(  d)  of  the  Act  provides  that  the 

 Commission  may  not  forbear  from  applying  the  requirements  of  section  271  or  section  251(  c)  unless  it  determines  that  those  requirements  are  fully  implemented.  130  We  conclude  that  those  sections  are  fully 
 implemented  and  may  be  forborne  from. 
 1.  Section  10(  d)  As  It  Relates  to  the  Requirements  of  Section  271 
 52.  Qwest  seeks  forbearance  from  section  271(  c)(  2)(  B)(  i-  vi)  and  (xiv).  We  conclude  that  section  10(  d)  does  not  prevent  us  from  granting  Qwest  forbearance  relief  from  these  checklist  portions  of  271(  c). 
 Subsequent  to  the  filing  of  Qwests  Petition  and  comments  in  the  instant  proceeding,  the  Commission  held  in  the  Section  271  Broadband  Forbearance  Order  that  the  checklist  portion  of  section  271(  c)  is 
 fully  implemented  once  section  271  authority  is  obtained  in  a  particular  state.  131  Accordingly,  because  Qwest  has  obtained  section  271  authority  in  Nebraska  and  Iowa  132  (as  all  the  BOCs  have  in  all  their 
 states),  the  checklist  requirements  of  section  271(  c)  have  been  fully  implemented  for  purposes  of  section  10(  d). 

 (Continued  from  previous  page)  approach  we  adopt  today  when  analyzing  Qwests  unbundling  obligations  arising  under  section  251  and  section  271 
 of  the  Act.  See,  e.  g.,  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2581-  85,  paras.  79-  85  (analyzing  dedicated  transport  impairment  at  the  very  detailed  level  of  specific  routes  between  wire  centers);  see  also  id.  at  2619-  25, 
 paras.  155-  65  (conducting  a  wire  center-  based  impairment  analysis  for  high  capacity  loops);  see  also  infra  Parts  III.  D,  III.  E  (analyzing  forbearance  from  section  251  and  section  271  obligations  on  a  wire  center  basis).  By 
 comparison,  the  Commission  previously  has  conducted  its  dominance  analysis  in  broader  geographic  markets,  which  also  is  the  approach  we  adopt  today  when  evaluating  Qwests  request  for  relief  from  dominant  carrier 
 regulations.  See,  e.  g.,  AT&  T  Reclassification  Order,  11  FCC  Rcd  at  3286,  para.  22  (adopting  a  national  geographic  market). 

 130  47  U.  S.  C.    160(  d). 
 131  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21503-  04,  para.  17  (rejecting  the  argument  that 
 the  fully  implemented  language  contains  competitive  thresholds);  see  id.  at  21512,  para.  35  (rejecting  the  argument  that  section  271(  d)(  4)  precludes  a  grant  of  forbearance  relief  under  section  10  as  inconsistent  with  the 

 plain  terms  of  the  statute);  see  id.  at  21502-  04,  paras.  12-  18.  We  therefore  reject  the  arguments  of  several  commenters  that  the  Commission  cannot  forbear  from  application  of  a  checklist  requirement,  either  because  section 
 271  has  not  been  fully  implemented,  see,  e.  g.,  AT&  T  Comments  at  26;  Sprint  Comments  at  13,  or  because  section  271(  d)(  4)  prohibits  the  Commission,  by  rule  or  otherwise,  from  limit[  ing]  or  extend[  ing]  the  terms  used  in  the 
 competitive  checklist,  see,  e.  g.,  Sprint  Comments  at  3;  McLeodUSA  Comments  at  3.  CompTel  suggests  that  section  271  is  not  fully  implemented  until  a  minimum  of  three  years  after  long-  distance  authority  has  been  granted 
 in  a  particular  state.  See  CompTel  Comments  at  8.  The  Commission  has  rejected  this  argument.  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21504,  para.  18  (holding  that  the  fully  implemented  language  of 
 section  10(  d)  must  be  read  in  context  and  that  the  section  272  requirements,  which  sunset  at  a  minimum  three  years  after  section  271  approval  has  been  granted,  are  distinct  from  the  other  requirements  of  section  271). 

 132  See  Qwest  IA/  NE  Section  271  Order,  17  FCC  Rcd  26303. 
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 2.  Section  10(  d)  As  It  Relates  to  the  Requirements  of  Section  251(  c) 
 53.  We  conclude  that  section  251(  c)  is  fully  implemented  for  all  incumbent  LECs  nationwide.  Specifically,  we  conclude  that  section  251(  c)  is  fully  implemented  because  the  Commission  has  issued 
 rules  implementing  section  251(  c)  and  those  rules  have  gone  into  effect.  We  believe  the  interpretation  we  adopt  today  is  the  most  natural  reading  of  statute.  133  The  Commission  is  the  entity  that  implements 
 section  251(  c),  and  hence  the  full  implementation  of  section  251(  c)  is  triggered  by  action  taken  by  this  Commission.  In  contrast,  incumbent  LECs  comply  with  section  251(  c)  and  the  Commissions  rules,  but 
 in  this  context  are  not  properly  said  to  be  implementing  this  statutory  provision.  Our  interpretation  that  the  Commission  is  the  entity  that  implements  section  251(  c)  also  is  the  interpretation  most  consistent  with 
 section  251(  d)(  1),  which  directs  the  Commission  within  six  months  after  section  251(  c)  was  enacted  to  complete  all  actions  necessary  to  establish  regulations  to  implement  the  requirements  of  section  251.  134 
 Therefore,  it  is  these  rulemaking  activities,  by  which  the  Commission  established  regulations  to  implement  the  requirements  of  section  251(  c),  that  most  properly  represent  the  threshold  activity  that 
 must  occur  before  the  Commission  can  forbear  from  applying  the  requirements  of  section  251(  c). 
 54.  The  interpretation  we  adopt  today  regarding  when  section  251(  c)  is  fully  implemented  is  similar  in  approach  to  the  Commissions  previous  interpretation  of  section  10(  d)  as  applied  to  section 

 271(  c).  135  To  the  extent  there  are  differences  in  our  interpretation  of  section  10(  d)  as  it  applies  to  sections  251(  c)  and  271(  c),  those  differences  result  from  and  track  statutory  differences.  136  In  the  Section  271 

 133  Section  10(  d)  provides  in  relevant  part  that  the  Commission  may  not  forbear  from  applying  the  requirements  of 
 section  251(  c)  or  271  under  subsection  (a)  of  this  section  until  it  determines  that  those  requirements  have  been  fully  implemented.  47  U.  S.  C.    160(  d).  As  used  in  this  context,  we  find  that  the  phrase  until  it  determines  that  those 

 requirements  have  been  fully  implemented  refers  to  the  Commission  and  indicates  that  Congress  intended  for  us  to  determine  when  the  requirements  of  section  251(  c)  have  been  fully  implemented.  We  believe,  therefore,  that  when 
 the  D.  C.  Circuit  stated  in  2001  that  the  requirements  of  section  251(  c)  had  not  been  fully  implemented,  it  merely  referred  to  the  fact  that  the  Commission  had  not  yet  found  that  the  requirements  of  section  251(  c)  were  fully 
 implemented.  Association  of  Communications  Enters.  v.  FCC,  235  F.  3d  662,  666  (D.  C.  Cir.  2001). 
 134  47  U.  S.  C.    251(  d)(  1)  (emphasis  added). 

 135  In  the  present  context,  we  conclude  that  section  251(  c)  is  fully  implemented  once  the  Commission  has  completed 
 its  work  of  promulgating  rules  implementing  section  251(  c)  and  those  rules  have  taken  effect.  In  the  context  of  the  competitive  checklist  items  of  section  271(  c),  the  Commission  previously  has  determined  that  the  checklist  items  are 

 fully  implemented  once  there  is  nothing  further  the  Commission  or  the  BOC  needs  to  do  in  order  to  implement  the  checklist.  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  21503,  para.  16.  In  each  case,  the  statutory 
 provision  to  which  section  10(  d)  applies  is  fully  implemented  as  soon  as  whatever  predicate  actions  must  occur  in  order  to  create  ongoing  legal  obligations  under  the  statutory  provision  at  issue  have  transpired. 

 136  For  example,  where  the  obligations  of  the  Act  are  not  ongoing  obligations  but  instead  have  a  sunset  date,  the 
 Commission  has  held  that  such  obligations  are  fully  implemented  after  that  sunset  date  has  passed.  See  Petition  of  Verizon  for  Forbearance  from  the  Prohibition  of  Sharing  Operating,  Installation,  and  Maintenance  Functions 

 Under  Section  53.203(  A)(  2)  of  the  Commissions  Rules,  CC  Docket  No.  96-  149,  Memorandum  Opinion  and  Order,  18  FCC  Rcd  23525,  23530,  para.  7  (2003)  (denying  a  request  for  forbearance  from  the  separate  operating, 
 installation,  and  maintenance  functions  of  section  272    as  referenced  in  section  271(  d)    on  the  basis  that  the  section  272  separate  affiliate  requirements  are  not  fully  implemented  until  three  years  past  the  date  that  the 
 Commission  has  granted  section  271  in-  region  interLATA  service  to  a  BOC  in  a  particular  state).  In  the  Advanced  Services  Order,  the  Commission  denied  the  petitions  of  several  BOCs  requesting  forbearance  from  the  requirements 
 of  sections  251(  c)  and/  or  section  271  and  concluded  that  Congress  did  not  provide  us  with  the  statutory  authority  (continued.) 
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 Broadband  Forbearance  Order,  the  Commission  explained  that  the  language  of  section  10(  d)  must  be  viewed  in  the  context  of  the  particular  requirements  at  issue.  137  With  respect  to  the  requirements  of 
 section  251(  c),  Congress  designated  the  Commission  as  the  entity  to  implement  the  section  251(  c)  requirements.  With  respect  to  the  competitive  checklist  requirements  of  section  271(  c),  however,  these 
 requirements  first  attach  to  the  BOCs  as  obligations  only  after  the  BOCs  have  sufficiently  opened  their  markets  to  competition  under  the  standards  set  forth  in  section  271(  c)(  2)(  B),  and  after  the  Commission 
 has  granted  the  BOC  approval  under  section  271(  a)  to  provide  in-  region  interLATA  services.  138  Thus,  the  BOCs  have  a  role  in  implementing  section  271(  c)  that  incumbent  LECs  do  not  have  in  implementing 
 section  251(  c)    a  role  recognized  in  the  statute.  139  It  therefore  would  be  inappropriate  for  the  Commission  to  interpret  section  10(  d)  as  applied  to  section  251(  c)  as  if  the  incumbent  LECs  had  a  role  in 
 implementing  section  251(  c)  similar  to  the  role  the  BOCs  have  in  implementing  section  271(  c);  doing  so  would  ignore  the  Commissions  conclusion  that  the  language  of  section  10(  d)  must  be  viewed  in  the 
 context  of  the  particular  requirements  at  issue.  140 
 (Continued  from  previous  page)  to  forbear  from  these  critical  market-  opening  provisions  of  the  Act  until  their  requirements  have  been  fully 
 implemented.  See  Deployment  of  Wireline  Services  Offering  Advanced  Telecommunications  Capability,  CC  Docket  No.  98-  147,  Memorandum  Opinion  and  Order,  and  Notice  of  Proposed  Rulemaking,  13  FCC  Rcd  24012, 
 24018,  para.  12  (1998)  (Advanced  Services  Order)  (subsequent  history  omitted).  However,  the  Commission  declined  to  reach  the  issue  of  whether  sections  251(  c)  and  271(  c)  are  fully  implemented.  See  id.  at  24048,  para.  77. 

 137  In  particular,  the  Commission  reasoned  that  the  section  272  requirements  referenced  in  section  271(  d)  differ  from 
 the  rest  of  section  271,  so  that  the  three-  year  timeframe  under  which  separate  affiliate  obligations  apply  following  a  section  271  grant  should  not  apply  to  the  section  271(  c)  competitive  checklist.  Section  271  Broadband 

 Forbearance  Order,  19  FCC  Rcd  at  21504,  para.  18. 
 138  Under  the  Act,  BOCs  were  not  required  to  comply  with  any  of  the  section  271(  c)  competitive  checklist  items 
 prior  to  obtaining  section  271  approval  (except  to  the  extent  those  items  restate  obligations  imposed  on  them  by  other  independent  provisions).  Following  the  grant  of  section  271  approval,  which  is  when  the  Commission  held 

 that  section  271(  c)  is  fully  implemented,  the  checklist  items  became  binding  legal  obligations  the  violation  of  which  may  result  in  injunction,  forfeiture  or  other  penalty  under  Title  V  of  the  Act,  or  suspension  or  revocation  of  section 
 271  authority.  47  U.  S.  C.    271(  d)(  6)(  A);  see  also  Application  by  Bell  Atlantic  New  York  for  Authorization  Under  Section  271  of  the  Communications  Act  to  Provide  In-  Region,  InterLATA  Service  in  the  State  of  New  York,  CC 
 Docket  No.  99-  295,  Memorandum  Opinion  and  Order,  15  FCC  Rcd  3953,  4174-  77,  paras.  446-  53  (1999)  (describing  the  Commissions  section  271  application  post-  approval  enforcement  framework,  as  well  as  its  various 
 section  271(  d)(  6)  enforcement  powers). 
 139  47  U.  S.  C.    271(  d)(  3)(  A)(  i);  see  also  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21503,  para. 
 16  (stating  that  the  meaning  of  fully  implemented  under  section  10(  d)  is  consistent  with  the  language  in  section  271(  d)(  3)(  A)(  i),  under  which  a  BOC  has  met  the  requirements  of  section  271(  c)(  1)  if,  among  other  obligations,  it 

 has  fully  implemented  the  competitive  checklist). 
 140  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21504,  para.  18.  We  therefore  do  not  accept 
 Qwests  argument  that  whether  section  251(  c)  has  been  fully  implemented  in  a  particular  state  turns  on  whether  the  carrier  seeking  forbearance  has  been  granted  section  271  authority  to  provide  in-  region  long  distance  services  in 

 that  state.  See  SBC  Reply  at  3;  see  also  Petition  at  4;  Qwest  Reply  at  7-  12;  Letter  from  Cronan  OConnell,  Vice  President    Federal  Regulatory  Affairs,  Qwest,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223, 
 Attach.  1  at  5-  6  (filed  July  25,  2005)  (Qwest  July  25,  2005  Ex  Parte  Letter).  In  addition,  the  fact  that  all  incumbent  LECs    rather  than  just  BOCs    are  subject  to  section  251(  c)  undercuts  a  reading  that  such  a  statutory  provision 
 would  be  fully  implemented  based  upon  a  standard  that  applies  only  to  BOCs  and  thus  that  only  BOCs  could  satisfy. 
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 55.  We  are  not  persuaded  by  the  arguments  in  the  record  that  we  should  adopt  a  competition-based  test  to  determine  when  section  251(  c)  has  been  fully  implemented.  141  Qwest  and  others  assert  that 
 the  Commission  should  read  section  10(  d)  to  mean  that  particular  measurements  of  market  power,  market  share,  or  other  indicators  of  competition  should  serve  as  the  threshold  barrier  for  the  forbearance 
 inquiry.  142  However,  as  the  Commission  explained  in  the  Section  271  Broadband  Forbearance  Order,  such  an  interpretation  would  require  inquiries  redundant  to  the  Commissions  analysis  under  section  10, 
 which  already  requires  the  Commission  to  consider  the  competitive  market  conditions  in  its  forbearance  analysis,  including  whether  a  grant  of  forbearance  will  enhance  competition.  143  We  do  not  believe 
 Congress  intended  section  10(  d)  to  require  duplicative  analyses. 
 56.  Finally,  some  commenters  argue  that  section  10(  d)  precludes  forbearance  in  the  absence  of  permanent  unbundling  rules.  144  We  disagree.  We  believe  that  such  an  interpretation  would  render 

 section  10(  a)  a  nullity  with  respect  to  requirements  arising  under  section  251(  c).  The  extensive  and  necessarily  detailed  rules  promulgated  under  section  251(  c)  frequently  are  revised  as  the  Commission 
 addresses  petitions  for  rulemaking,  reconsideration,  or  declaratory  rulings  and  as  it  updates  those  regulations  to  reflect  marketplace  developments.  Indeed,  Congress  requires  the  Commission  biennially  to 
 evaluate  its  regulations  that  apply  to  telecommunications  service  providers  and  to  determine  whether  economic  competition  has  made  those  regulations  no  longer  necessary  in  the  public  interest.  145  The 
 Commission  must  modify  or  repeal  any  such  regulations  that  it  finds  are  no  longer  in  the  public  interest.  146  In  addition,  the  Commissions  section  251(  c)  rules  often  are  subject  to  court  challenges.  147  To 
 wait  for  a  set  of  permanent  rules  that  have  survived  every  court  challenge  would  presume  a  static  state  of  technological  and  economic  development,  and  would  give  the  fully  implemented  clause  a  meaning 
 more  akin  to  that  of  an  absolute  bar  than  a  threshold  standard.  148 

 141  See,  e.  g.,  McLeodUSA  Comments  at  4-  6,  12;  AT&  T  Comments  at  26;  MCI  Comments  at  19. 
 142  Petition  at  31;  see  also,  e.  g.,  USTA  Reply  at  1. 
 143  47  U.  S.  C.    160(  a),  (b);  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21503-  04,  para.  17. 
 144  See,  e.  g.,  Sprint  Comments  at  11  (noting  that  the  court  in  USTA  II  struck  down  some  of  the  Commissions 
 section  251(  c)  rules). 
 145  47  U.  S.  C.    151(  a);  see  also  The  2002  Biennial  Regulatory  Review,  GC  Docket  No.  02-  390,  Report,  18  FCC  Rcd 
 4726,  4726,  para.  3  (2003)  (stating  that  [  t]  he  process  of  reviewing  our  rules  subject  to  Section  11  is,  in  essence,  ever-  continuing). 

 146  47  U.  S.  C.    161(  b). 
 147  See,  e.  g.,  USTA  II,  359  F.  3d  554  (affirming  in  part,  remanding  in  part,  and  vacating  in  part  the  Triennial  Review 
 Order,  18  FCC  Rcd  19020). 
 148  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21503-  04,  para.  17  (stating  that  section  10(  d)  is 
 reasonably  interpreted  as  a  threshold  standard).  Interpreting  section  10(  d)  to  preclude  forbearance  in  the  absence  of  permanent  unbundling  rules  would  force  the  Commission  to  choose  between  not  updating  its  rules  when  in  the 

 public  interest  to  do  so  pursuant  to  section  11  or  exercising  its  plenary  rulemaking  authority,  on  the  one  hand,  or  not  granting  a  particular  carrier  or  service  forbearance  from  a  rule  when  doing  so  would  be  in  the  public  interest  and 
 otherwise  satisfy  the  criteria  of  section  10,  on  the  other.  47  U.  S.  C.    160-  61.  We  do  not  believe  this  result  is  one  Congress  intended  when  enacting  section  10(  d).  We  further  note  that  the  interpretation  urged  by  Sprint  and  others 
 (continued.) 
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 D.  Forbearance  from  Section  251(  c)  Requirements 
 57.  We  grant  Qwests  Petition  in  part,  and  forbear  from  applying  to  Qwest  the  requirements  arising  under  section  251(  c)(  3)  to  provide  unbundled  access  to  loop  and  transport  elements  149  in  certain 

 wire  centers  in  the  Omaha  MSA  based  upon  the  development  of  sufficient  facilities-  based  competition  and  other  factors  we  explain  below.  We  deny  Qwests  Petition  to  the  extent  it  seeks  forbearance  relief 
 from  all  of  the  remaining  obligations  of  section  251(  c).  Specifically,  we  deny  Qwests  request  for  relief  from  obligations  arising  under  section  251(  c)  to  negotiate  in  good  faith  the  terms  and  conditions  of  its 
 section  251(  b)  and  section  251(  c)  obligations;  to  provide  other  carriers  with  interconnection  to  Qwests  network  at  any  technically  feasible  point;  to  offer  its  retail  services  for  resale  at  avoided-  cost  wholesale 
 rates;  to  provide  access  to  UNEs  other  than  loops  and  transport;  150  to  provide  reasonable  public  notice  of  changes  in  its  network  that  would  affect  interoperability;  and  to  satisfy  certain  collocation  obligations. 

 58.  In  the  Petition,  Qwest  contends  that  the  growth  of  retail  competition  in  the  Omaha  MSA  has  given  enterprise  and  mass  market  customers  multiple  competitive  options  to  satisfy  their 
 telecommunications  needs.  151  On  the  basis  of  this  retail  competition,  Qwest  argues  that  it  is  no  longer  necessary  or  appropriate  that  it  remain  subject  to  the  requirements  of  section  251(  c)  in  the  Omaha  MSA. 
 To  support  its  position,  Qwest  presents  evidence  that  the  number  of  retail  lines  it  uses  to  serve  customers  has  fallen  steadily  since  1997,  and  claims  that  retail  competition  from  wireline  carriers  and  intermodal 
 competitors  accounts  for  this  decline.  152  In  particular,  Qwest  submits  that  an  incumbent  cable  operator  in  the  Omaha  MSA,  Cox,  uses  its  own  extensive  facilities,  including  its  own  loop  equivalents,  to  provide 

 (Continued  from  previous  page)  would  give  the  Commission  the  ability  to  deny  all  forbearance  relief  so  long  as  it  updated  its  section  251(  c)  rules  on 
 an  annual  basis,  which  is  in  tension  with  the  mandatory  language  contained  in  sections  10  and  11  of  the  Act.  See  47  U.  S.  C.    160-  61. 

 149  By  UNE  loops  and  transport  we  mean  all  analog,  DS0,  DS1  and  DS3  loop  and  dedicated  transport  network 
 elements  that  are  subject  to  section  251(  c)(  3)  unbundling.  See  47  C.  F.  R.    51.319(  a)  (loops),  51.319(  e)  (dedicated  transport).  In  addition,  for  purposes  of  this  Order,  our  discussion  of  UNE  loops  and  transport  extends  to  subloops 

 and  network  interface  devices  as  defined  in  sections  51.319(  b)  and  (c)  of  the  Commissions  rules,  regarding  which  we  also  forbear  from  the  requirements  arising  under  section  251(  c)(  3)  as  applied  to  Qwest  in  the  Omaha  MSA.  47 
 C.  F.  R.    51.319(  b),  (c). 
 150  We  expressly  do  not  forbear  today  from  requirements  arising  under  section  251(  c)(  3)  with  respect  to  911  and 
 E911  databases  or  operations  support  systems  as  defined  in  sections  51.319(  f)  and  (g)  of  the  Commissions  rules.  See  id.  at    51.319(  f),  (g). 

 151  Petition  at  3;  Qwest  Teitzel  Aff.  at  1. 
 152  Relying  on  estimates  from  an  E911  database  administrator  from  April  2004  as  a  directional  surrogate  for  the 
 number  of  access  lines  served  by  facilities-  based  CLECs,  in  combination  with  competitive  LEC  resale  and  UNE-  P  data  as  of  February  2004  and  its  own  retail  access  line  data,  Qwest  submits  that  the  market  share  of  competitive 

 LECs  is  [REDACTED]  percent  of  residential  access  lines  in  the  Omaha  MSA,  and  [REDACTED]  percent  of  business  voice  grade  equivalent  (VGE)  access  lines.  Qwest  Teitzel  Aff.  at  6-  8.  Qwest  concedes  that  a  precise 
 calculation  of  competitive  LEC  market  share  is  difficult  because  it  does  not  have  access  to  its  competitors  proprietary  customer  information,  and  that  the  number  of  E911  records  is  not  directly  equivalent  to  the  number  of 
 access  lines  in  service.  See  id.  at  6-  7. 
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 telecommunications  services  in  parts  of  this  MSA;  has  captured  significant  market  share  for  narrowband  voice  customers  in  this  MSA;  and  is  actively  competing  for  enterprise  customers.  153 
 59.  As  explained  below,  we  find  that  the  substantial  intermodal  competition  for  telecommunications  services  provided  over  Coxs  own  extensive  facilities  is  sufficient  to  grant  Qwest 
 forbearance  from  the  application  of  its  section  251(  c)(  3)  obligations  with  respect  to  loops  and  transport,  in  light  of  the  continued  application  in  the  Omaha  MSA  of  other  statutory  and  regulatory  provisions 
 designed  to  promote  the  development  of  competitive  markets  for  telecommunications  services  and  the  actual  competition  these  regulations  have  facilitated.  Over  two  years  ago,  in  the  Triennial  Review  Order, 
 the  Commission  determined  that  intermodal  competition  from  cable  had  not  blossomed  into  a  full  substitute  for  wireline  telephony.  154  Today,  as  a  result  of  Coxs  investment  in  network  infrastructure  in 
 the  Omaha  MSA,  Cox,  like  Qwest,  is  providing  telecommunications  services  over  its  own  extensive  last-mile  facilities.  On  the  basis  of  this  competition,  combined  with  other  statutory  and  regulatory  safeguards 
 that  facilitate  additional  competition,  we  find  that  the  criteria  of  section  10(  a)  are  satisfied  with  respect  to  Qwests  section  251(  c)(  3)  obligation  to  unbundle  loop  and  transport  elements  in  9  of  Qwests  24  wire 
 centers  in  the  Omaha  MSA  where  competitive  deployment  is  greatest.  Therefore,  we  forbear  from  the  application  of  section  251(  c)(  3)  to  Qwest  to  the  extent  it  requires  Qwest  to  provide  access  to  loops  in  and 
 transport  to  those  9  wire  centers.  155 
 60.  However,  for  the  remainder  of  the  section  251(  c)  obligations  from  which  Qwest  seeks  relief  in  the  present  Petition,  we  find  that  Qwest  has  not  satisfied  any  of  the  criteria  of  section  10(  a)  that  might 

 allow  us  to  grant  its  Petition.  Except  in  limited  geographic  areas,  Qwest  has  not  demonstrated  that  it  is  subject  to  significant  competition  from  competitors  that  do  not  rely  heavily  on  Qwests  wholesale 
 services.  Cox  does  not  have  any  coverage  156  at  all  in  [REDACTED]  of  Qwests  24  wire  center  service 
 153  Petition  at  8,  13;  Qwest  Teitzel  Aff.  at  10-  17. 
 154  See  Triennial  Review  Order,  18  FCC  Rcd  at  17127,  para.  245. 
 155  The  Commission  already  has  relieved  Qwest  and  certain  other  carriers  from  unbundling  obligations  arising  under 
 section  251(  c)(  3)  and  section  271  to  provide  access  to  certain  loop  and  transport  facilities,  which  limits  the  scope  of  todays  Order.  See  supra  notes  25-  29.  The  9  wire  centers  in  which  we  grant  Qwest  forbearance  from  the 

 application  of  section  251(  c)(  3)  loop  and  transport  unbundling  obligations  in  the  Omaha  MSA  are:  Omaha  Douglas,  Omaha  Izard  Street,  Omaha  90th  Street,  Omaha  Fort  Street,  Omaha  Fowler  Street,  Omaha  O  Street, 
 Omaha  78th  Street,  Omaha  135th  Street,  and  Omaha  156th  Street.  See  also  Cox  June  30,  2005  Ex  Parte  Letter  at  2  (disclosing  Qwests  wire  center  service  areas  where  Coxs  network  covers  at  least  [REDACTED]  of  the  end  user 
 locations);  see  also  infra  n.  156  (defining  covers).  Cox  does  not  include  Multiple  Tenant  Environments  (MTEs)  to  which  it  does  not  have  access  to  provide  telecommunications  services  in  either  the  numerator  or  denominator  of  its 
 calculation  of  which  wire  centers  it  covers.  See  Letter  from  J.  G.  Harrington,  Counsel  to  Cox,  WC  Docket  No.  04-  223,  Attach.  at  1  (filed  Sep.  16,  2005)  (Cox  Sept.  16,  2005  Ex  Parte  Letter).  However,  Cox  contends  that  including 
 MTEs  to  which  it  does  not  have  access  in  its  calculations  would  not  have  a  material  effect  on  its  coverage  estimates.  See  id. 

 156  As  we  use  the  term  in  this  Order,  an  intermodal  competitor  covers  a  location  where  it  uses  its  own  network, 
 including  its  own  loop  facilities,  through  which  it  is  willing  and  able,  within  a  commercially  reasonable  time,  to  offer  the  full  range  of  services  that  are  substitutes  for  the  incumbent  LECs  local  service  offerings.  Therefore,  and 

 for  example,  a  carrier  covers  an  MTE  if  that  carrier  would  be  willing  and  able,  within  a  commercially  reasonable  time,  of  providing  service  to  that  MTE  even  if  the  building  owner  has  not  already  granted  the  carrier  the  right  to 
 provide  service  within  that  particular  building. 
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 areas  in  the  Omaha  MSA,  and  in  other  wire  center  service  areas  has  only  limited  coverage.  157  Cox  is  not  able  to  provide  the  same  level  of  competition  where  it  does  not  have  extensive  coverage  as  where  it  has 
 such  coverage.  We  find  that  forbearing  from  section  251(  c)(  3)  and  the  other  market-  opening  provisions  of  the  Act  and  our  regulations  where  no  competitive  carrier  has  constructed  substantial  competing 
 last-  mile  facilities  is  not  consistent  with  the  public  interest  and  likely  would  lead  to  a  substantial  reduction  in  the  retail  competition  that  today  is  benefiting  customers  in  the  Omaha  MSA.  Furthermore, 
 all  competitors  in  all  areas  of  the  Omaha  MSA  rely  on  Qwest  for  certain  inputs  and  services  mandated  by  section  251(  c),  such  as  direct  interconnection  under  section  251(  c)(  2).  158  Forbearance  from  these 
 remaining  section  251(  c)  provisions  similarly  is  unwarranted  at  present. 
 1.  Unbundled  Access  to  Loops  and  Transport 
 61.  We  determine  that  continued  application  to  Qwest  of  the  section  251(  c)(  3)  obligation  to  provide  unbundled  access  to  loops  and  transport  to  competitors  in  certain  parts  of  the  Omaha  MSA  is 
 unnecessary  under  the  standards  set  forth  in  section  10(  a)  of  the  Act.  159  While  Qwest  seeks  relief  from  the  obligations  of  section  251(  c)(  3)  in  its  entire  service  area  within  the  MSA,  as  evident  from  our 
 discussion  below,  the  criteria  of  section  10(  a)  are  not  satisfied  in  all  of  Qwests  territory  in  this  MSA.  The  merits  of  the  Petition  warrant  forbearance  only  in  locations  where  Qwest  faces  sufficient 
 facilities-  based  competition  to  ensure  that  the  interests  of  consumers  and  the  goals  of  the  Act  are  protected  under  the  standards  of  section  10(  a).  160  We  are  persuaded  by  record  evidence,  some  of  which 
 Qwest  and  Cox  submitted  on  a  wire  center  basis,  that  such  a  level  of  competition  exists  in  certain  of  Qwests  wire  center  service  areas  located  in  the  Omaha  MSA.  We  are  equally  convinced  that  in  other 
 wire  center  service  areas  in  this  market,  Qwest  is  not  subject  to  this  level  of  competition.  161 

 157  See  Cox  June  30,  2005  Ex  Parte  Letter  at  2. 
 158  47  U.  S.  C.    251(  c);  see  also,  e.  g.,  Letter  from  Daniel  L.  Brenner,  Senior  Vice  President,  Law  &  Regulatory 
 Policy,  NCTA,  to  Chairman  Martin  and  Commissioners  Abernathy,  Copps  and  Adelstein,  FCC,  WC  Docket  No.  04-  223  at  2  (Aug.  30,  2005)  (arguing  that  in  the  absence  of  interconnection  under  section  251(  c),  competitors  would 

 not  be  able  to  provide  consumers  with  meaningful  alternatives  to  incumbent  LEC  offerings). 
 159  We  deny  as  moot  those  aspects  of  the  Petition  in  which  Qwest  seeks  forbearance  from  the  application  of 
 unbundling  obligations  the  Commission  has  since  affirmatively  determined  to  withdraw  nationwide  pursuant  to  section  251(  c)(  3).  After  Qwest  filed  its  Petition,  the  Commission  determined  that  certain  dedicated  transport  and 

 loop  facilities,  and  mass  market  local  circuit  switching,  do  not  need  to  be  unbundled  under  section  251(  c)(  3).  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2575-  2661,  paras.  66-  228.  Therefore,  the  question  of  whether  to 
 forbear  from  the  application  of  those  unbundling  duties  is  no  longer  before  us. 
 160  As  explained  below,  in  order  to  avoid  customer  disruption,  we  establish  a  six-  month  transition  period  to  facilitate 
 the  transition  from  UNEs  to  alternative  options  in  those  wire  centers  where  we  eliminate  Qwests  unbundling  obligations.  See  infra  para.  74. 

 161  We  are  under  no  statutory  obligation  to  evaluate  Qwests  Petition  other  than  as  pled;  nevertheless,  sections  10(  a) 
 and  10(  c)  each  provide  this  Commission  sufficient  authority  to  grant  Qwests  Petition  in  part    that  is,  only  in  certain  wire  centers.  See  47  U.  S.  C.    160(  a)  (granting  the  Commission  forbearance  authority  independent  of  a  filed 

 petition),  (c)  (authorizing  the  Commission  to  grant  to  grant  or  deny  a  forbearance  petition  in  whole  or  in  part).  We  see  no  reason  categorically  to  deny  Qwest  relief  in  a  broader  geographic  area  when  the  evidence  in  the  record  is 
 presented  on  a  basis  that  allows  us,  in  an  administrable  fashion  and  consistent  with  the  Commissions  precedent,  to  make  findings  on  a  wire  center  basis.  See  supra  n.  13  (describing  the  wire-  center-  based  analysis  the  Commission 
 (continued.) 
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 62.  We  tailor  Qwests  relief  to  specific  thresholds  of  facilities-  based  competition  from  Cox.  Specifically,  we  grant  Qwest  forbearance  from  obligations  to  unbundle  loops  and  transport  pursuant  to 
 section  251(  c)(  3)  in  wire  centers  where  Coxs  voice-  enabled  cable  plant  covers  at  least  [REDACTED]  percent  of  the  end  user  locations  that  are  accessible  from  that  wire  center.  Our  decision  today  also  is 
 based  on  other  actual  and  potential  competition,  which  we  find  either  is  present,  or  readily  could  be  present,  in  100  percent  of  Qwests  service  area  in  the  Omaha  MSA.  Carriers  are  still  able  to  rely  on 
 section  251(  c)(  4)  resale  and  the  other  market-  opening  provisions  from  which  we  do  not  forbear  today  everywhere  in  Qwests  service  area  in  this  MSA.  For  instance,  competitive  LECs  continue  to  have 
 section  251(  c)  interconnection  rights  throughout  Qwests  service  area,  and  have  rights  under  section  271(  c)(  2)(  b)(  iv)-(  vi)  to  access  Qwests  loops,  switching  and  transport  throughout  Qwests  service  area, 
 except  where  Qwests  obligations  already  have  been  lifted  by  the  Section  271  Broadband  Forbearance  Order.  162 

 a.  Section  10(  a)(  1)    Charges,  Practices,  Classifications,  and  Regulations 
 63.  Although  the  Commissions  unbundling  analysis  does  not  bind  our  forbearance  review,  we  find  it  instructive  for  purposes  of  rendering  our  section  10(  a)  determination.  In  the  Triennial  Review 
 Remand  Order,  the  Commission  declined  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.  163  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  might  justify  forbearance  from  UNE  obligations.  164  Today,  that  expectation  is  realized.  We  find  that  competition  for  telecommunication  services  is  sufficiently  developed  in  certain  wire  centers  that 

 (Continued  from  previous  page)  used  in  the  Triennial  Review  Remand  Order  to  determine  impairment  for  high-  capacity  loop  and  dedicated  transport 
 UNEs);  cf.  also  SBC  Sept.  12,  2005  Ex  Parte  Letter  at  1-  2  (arguing  that  the  Commission  should  use  much  broader  geographic  areas  than  wire  center  services  areas  to  evaluate  whether  to  grant  Qwest  forbearance  relief,  such  as 
 MSA  boundaries).  We  believe  that  our  action  today  serves  the  deregulatory  goals  of  the  Act.  See  supra  note  61. 
 162  47  U.  S.  C.    251(  c)(  2);  see  also  id.    271(  c)(  2)(  B)(  iv);  see  also  Section  271  Broadband  Forbearance  Order,  19 
 FCC  Rcd  at  21504,  para.  19.  We  therefore  reject  the  argument  that  our  decision  today  will  result  in  a  duopoly.  See  infra  para.  71. 

 163  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2553,  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.). 

 164  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2556-  57,  paras.  38-  39;  see  also  id.  at  2556,  para.  39  n.  116.  The 
 Commission  noted  that  incumbent  LECs  are  free  to  seek  forbearance  from  the  application  of  our  unbundling  rules  in  specific  geographic  markets  where  they  believe  the  aims  of  section  251(  c)(  3)  have  been  fully  implemented  and 

 the  other  requirements  for  forbearance  have  been  met;  that  Qwest  had  already  sought  such  relief;  and  that  incumbent  LECs  were  encouraged  to  file  similar  petitions  where  appropriate.  Id.  at  2557,  para.  39.  We  therefore 
 disagree  with  CompTel  that  forbearing  from  UNE  obligations  based  upon  sufficient  facilities-  based  competition  amounts  to  a  reversal  of  course  from  the  Triennial  Review  proceeding.  See  Letter  from  Jason  Oxman,  Senior  Vice 
 President,  Legal  Affairs,  CompTel,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223  at  3-  4  (filed  Sept.  9,  2005)  (CompTel  Sept.  9,  2005  Ex  Parte  Letter). 
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 the  section  251(  c)(  3)  obligation  to  provide  unbundled  access  to  loops  and  transport  is  no  longer  necessary  to  ensure  that,  in  the  Omaha  MSA,  Qwests  charges,  practices,  classifications,  or  regulations  .  .  .  are  just 
 and  reasonable  and  are  not  unjustly  or  unreasonably  discriminatory.  165  As  the  Commission  previously  has  found  in  the  context  of  its  section  10(  a)(  1)  analysis,  competition  is  the  most  effective  means  of 
 ensuring  that  .  .  .  charges,  practices,  classifications,  and  regulations  .  .  .  are  just  and  reasonable,  and  not  unreasonably  discriminatory.  166 

 64.  As  discussed  below,  we  conclude  that  sufficient  facilities-  based  competition  for  local  exchange  and  exchange  access  services  exists  in  certain  of  Qwests  Omaha  MSA  wire  center  service  areas 
 to  justify  forbearance  relief  for  several  reasons.  Most  importantly,  we  find  that  Cox  has  been  successfully  providing  local  exchange  and  exchange  access  services  in  these  wire  center  service  areas  without  relying 
 on  Qwests  loops  or  transport.  167  We  also  rely  on  the  continued  operation  of  other  provisions  of  the  Act  designed  to  develop  and  preserve  competitive  local  markets,  including  particularly  the  other  obligations 
 arising  under  sections  251(  c)  and  271(  c)  that  apply  to  Qwest  from  which  we  do  not  forbear  today.  168  We  are  convinced  that  this  facilities-  based  competition,  combined  with  the  other  competition  made  possible 
 by  our  rules,  suffices  to  satisfy  the  section  10(  a)  criteria  with  respect  to  Qwests  UNE  loop  and  transport  obligations  arising  under  section  251(  c)(  3). 

 65.  Competition  in  the  Omaha  MSA.  In  todays  Order,  consistent  with  our  prior  decisions,  we  examine  the  status  of  competition  in  the  retail  market  as  well  as  the  role  of  the  wholesale  market  in  the 
 Omaha  MSA.  169  We  begin  by  examining  the  retail  market,  and  in  so  doing  we  agree  with  Qwest  that,  in  evaluating  the  level  of  competition  in  a  market,  the  Commission  should  not  focus  exclusively  on 
 competition  provided  using  identical  technology  that  is  currently  deployed  by  the  incumbent  LECs.  170 

 165  47  U.  S.  C.    160(  a)(  1). 
 166  Petition  of  U  S  WEST  Communications  Inc.  for  a  Declaratory  Ruling  Regarding  the  Provision  of  National 
 Directory  Assistance;  Petition  of  U  S  WEST  Communications,  Inc.,  for  Forbearance;  The  Use  of  N11  Codes  and  Other  Abbreviated  Dialing  Arrangements,  CC  Docket  Nos.  97-  172,  92-  105,  Memorandum  Opinion  and  Order,  14 

 FCC  Rcd  16252,  16270,  para.  31  (1999). 
 167  Cox  claims  that  less  than  [REDACTED]  percent  of  Coxs  current  service  to  the  business  market  is  based  on 
 DS1  and  higher  bandwidth  facilities  leased  from  Qwest  to  reach  specific  customer  locations.  Letter  from  J.  G.  Harrington,  Counsel  to  Cox,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  Attach.  at  1  (filed 

 Aug.  22,  2005)  (Cox  Aug.  22,  2005  Ex  Parte  Letter). 
 168  See  Qwest  Teitzel  Aff.  at  8  (providing  number  of  residential  and  business  resold  lines). 

 169  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21505,  para.  21  (considering  the  wholesale 
 market  in  conjunction  with  the  retail  market  given  the  nature  of  relief  requested). 
 170  See  Qwest  Reply  at  6;  see  also  United  Stated  Telecom  Assn  v.  FCC,  290  F.  3d  415,  428  (D.  C.  Cir.  2002) 
 (USTA  I)  (holding  in  the  context  of  broadband  services  that  the  Commission  must  consider  intermodal  competition).  ALTS  argues  that  competition  for  voice  services  by  cable  operators  should  not  factor  into  the  Commissions 

 analysis.  ALTS  Comments  at  6;  see  also  Sprint  Comments  at  7  (arguing  that  cable  facilities  tend  to  be  concentrated  in  residential  areas  and  that  Coxs  service  territory  does  not  cover  all  of  the  Omaha  MSA  and  overlaps  only  part  of 
 Qwests  service  territory).  Rather  than  ignore  competition  from  Cox  because  its  network  only  partially  overlaps  with  Qwests  service  area,  we  find  that  a  better  approach  is  to  grant  Qwest  relief  only  in  those  areas  where  its 
 network  sufficiently  overlaps  with  Coxs  network  to  justify  such  relief  under  section  10. 
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 In  accord  with  this  determination,  we  take  account  of  telecommunications  services  provided  over  intermodal  facilities  to  the  extent  these  services  compete  as  substitutes  for  Qwests  wireline 
 telecommunications  service  offerings.  Of  greatest  importance  in  our  analysis  is  competition  from  Cox,  which  uses  its  cable  plant  to  provide  circuit-  switched  local  exchange  and  exchange  access  services  in  this 
 market. 
 66.  Cox  has  extensive  facilities  in  the  Omaha  MSA  capable  of  delivering  both  mass  market  and  enterprise  telecommunications  services.  171  Cox  has  proven  it  is  capable  of  competing  very  successfully 

 using  its  own  network  to  provide  services  in  the  mass  market  where  the  revenue  potential,  compared  with  the  enterprise  market,  is  relatively  low.  Indeed,  in  the  residential  market,  Cox  has  [REDACTED]  voice 
 customers  in  this  MSA  [REDACTED]  Qwest.  172  In  addition,  Qwest  has  provided  evidence  that  Cox  is  actively  marketing  itself  to  enterprise  customers,  has  succeeded  in  attracting  a  large  number  of  significant 
 Omaha  businesses  as  customers,  and  has  doubled  its  enterprise  sales  in  the  Omaha  MSA  each  year  for  five  consecutive  years.  173  While  Cox  has  captured  a  larger  share  of  mass  market  customers  to  date,  in 
 light  of  record  evidence  of  Coxs  strong  success  in  the  mass  market,  its  possession  of  the  necessary  facilities  to  provide  enterprise  services,  its  technical  expertise,  its  economies  of  scale  and  scope,  its  sunk 
 investments  in  network  infrastructure,  its  established  presence  and  brand  in  the  Omaha  MSA,  and  its  current  marketing  efforts  and  emerging  success  in  the  enterprise  market,  we  must  conclude  that  Cox  poses 
 a  substantial  competitive  threat  to  Qwest  for  higher  revenue  enterprise  services  as  well.  174  In  addition,  Qwest  has  provided  maps  and  other  evidence  that  competitors  have  deployed  their  own  transport  facilities 
 primarily  concentrated  within  the  boundaries  of  the  9  wire  center  service  areas  where  we  grant  Qwest  forbearance.  175 

 67.  We  also  examine  the  role  of  the  wholesale  market.  The  record  does  not  reflect  any  significant  alternative  sources  of  wholesale  inputs  for  carriers  in  this  geographic  market.  176  We  find, 

 171  See  Cox  Aug.  22,  2005  Ex  Parte  Letter,  Attach.  at  1  (stating  that  Cox  can  provide  service  up  to  the  OCn  level  to 
 each  of  the  enterprise  customers  passed  by  its  network). 
 172  Cox  submits  that  as  of  May  1,  2005,  it  has  [REDACTED]  residential  lines  (accounting  for  second  lines  in  some 
 residential  locations).  Cox  June  30,  2005  Ex  Parte  Letter  at  3.  Qwest  reports  that  as  of  December  2004,  it  has  [REDACTED]  residential  retail  access  lines  (accounting  for  second  lines).  Qwest  May  20,  2005  Ex  Parte  Letter, 

 Attach.,  Tab  7,  at  1. 
 173  Letter  from  Cronan  OConnell,  Vice  President    Federal  Regulatory  Affairs,  Qwest,  to  Marlene  H.  Dortch, 
 Secretary,  FCC,  WC  Docket  No.  04-  223,  at  Attach.  1,  Tab  16  (filed  Jul.  27,  2005)  (Qwest  July  27,  2005  Ex  Parte  Letter)  (providing  a  Cox  sales  PowerPoint  presentation). 

 174  For  the  reasons  above,  we  do  not  find  dispositive  Coxs  claims  that  it  currently  reaches  what  it  characterizes  as 
 [REDACTED]  of  potential  enterprise  customers  with  its  own  facilities.  See  Cox  Sept.  14,  2005  Ex  Parte  Letter,  Attach.  at  2;  see  also  Cox  Sept.  16,  2005  Ex  Parte  Letter,  Attach.  at  1  (stating  that  Cox,  over  its  own  facilities,  can 

 reach  [REDACTED]  percent  of  the  business  locations  in  the  9  wire  center  service  areas  where  the  Commission  grants  Qwest  forbearance  relief). 

 175  Cox  June  30,  2005  Ex  Parte  Letter. 
 176  See  Letter  from  William  A.  Haas,  Associate  General  Counsel,  McLeodUSA,  to  Marlene  H.  Dortch,  Secretary, 
 FCC,  WC  Docket  No.  04-  223  at  2  (filed  Sept.  14,  2005)  (McLeodUSA  Sept.  14,  2005  Ex  Parte  Letter)  (  McLeodUSA  is  the  only  alternative  provider  of  wholesale  local  services  to  other  competitive  local  exchange 

 carriers  in  the  Omaha  MSA  market.  No  provider  other  than  Qwest  offers  a  commercial  local  wholesale  solution  to  (continued.) 
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 however,  that  Qwests  own  wholesale  offerings  will  continue  to  be  adequate  without  unbundled  loop  and  transport  offerings.  177  First,  for  mass  market  offerings,  we  note  that  Qwest  provides  [REDACTED] 
 residential  QPP  arrangements  178  (i.  e.,  combinations  of  DS0  loops,  switching,  and  shared  transport)  and  [REDACTED]  residential  resale  arrangements  179  in  the  9  wire  centers  in  which  we  grant  unbundling 
 relief.  Indeed,  Qwests  section  251(  c)(  4)  and  section  271(  c)  wholesale  obligations  remain  in  place.  The  very  high  levels  of  retail  competition  that  do  not  rely  on  Qwests  facilities    and  for  which  Qwest  receives 
 little  to  no  revenue    provide  Qwest  with  the  incentive  to  make  attractive  wholesale  offerings  available  so  that  it  will  derive  more  revenue  indirectly  from  retail  customers  who  choose  a  retail  provider  other  than 
 Qwest.  This  gives  us  enormous  comfort  that  in  the  mass  market,  unbundling  loops  and  transport  pursuant  to  section  251(  c)(  3)  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.  180 

 68.  Similarly,  with  regard  to  the  enterprise  market,  Qwest  has  provided  evidence  that  a  number  of  carriers  have  had  success  competing  for  enterprise  services  using  DS1  and  DS3  special  access  channel 
 terminations  obtained  from  Qwest,  presumably  in  addition  to  loops  at  least  some  of  these  competitive  carriers  self-  provision  where  economically  feasible.  181  Specifically,  Qwest  reports  that  competitive 
 carriers  rely  on  it  to  provide  [REDACTED]  DS1  and  [REDACTED]  DS3  interstate  special  access  channel  terminations  in  the  9  wire  centers  in  which  we  grant  unbundling  relief.  182  In  addition,  Qwest 
 (Continued  from  previous  page)  CLECs  in  the  Omaha  MSA.).  Several  commenters  are  unaware  that  any  carrier  in  the  Omaha  MSA  other  than 
 Qwest  provides  wholesale  telecommunications  services.  See  ALTS  Comments  at  3-  10;  Sprint  Comments  at  2;  MCI  Comments  at  3,  6;  CompTel  Comments  at  i;  AT&  T  Comments  at  11. 

 177  Contrary  to  the  arguments  of  some  commenters,  our  decision  today  is  consistent  with  the  Commissions 
 determination  in  the  Triennial  Review  Remand  Order  not  to  rely  on  wholesale  offerings  in  making  impairment  determinations.  See,  e.  g.,  CompTel  Sept.  9,  2005  Ex  Parte  Letter  at  1-  2.  In  the  Triennial  Review  Remand  Order, 

 the  Commission  determined  that  the  availability  of  incumbent  LECs  tariffed  wholesale  offerings  was  not  a  sufficient  basis  to  prevent  the  Commission  from  finding  that  requesting  carriers  are  impaired  without  unbundled 
 access  under  section  251(  c)(  3)  to  certain  facilities  that  may  also  be  available  as  tariffed  offerings.  See  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2560-  75,  paras.  46-  65  (holding  that  this  conclusion  is  the  best  interpretation 
 of  the  Communications  Act,  and  best  addresses  the  Commissions  concerns  about  administrability  and  risk  of  abuse,  among  other  reasons).  In  todays  Order,  rather  than  making  national  impairment  findings,  we  are  applying  the 
 statutory  standards  of  section  10  in  a  specific  geographic  market.  47  U.  S.  C.    160(  a).  The  record  in  the  current  proceeding  reveals  that  Qwest  in  certain  parts  of  the  Omaha  MSA  is  subject  to  significant  competition  from  Cox; 
 Cox  already  has  constructed  an  extensive  competitive  network  and  has  captured  [REDACTED]  of  the  residential  voice  market  in  the  Omaha  MSA,  and  has  a  demonstrated  and  growing  capacity    and  inclination    to  compete  for 
 enterprise  customers.  See  supra  text  accompanying  n.  175. 
 178  See  Qwest  May  20,  2005  Ex  Parte  Letter,  Attach.  1  at  Tab  8. 

 179  See  id. 
 180  47  U.  S.  C.    160(  a)(  1). 
 181  See  supra  note  177. 
 182  See  Qwest  May  20,  2005  Ex  Parte  Letter,  Attach.  1,  Tab  7,  Attach.  2  (showing  Qwests  combined  retail  and 
 wholesale  provisioned  special  access  circuits  by  wire  center);  Letter  from  Cronan  OConnell,  Vice  President    Federal  Regulatory,  Qwest,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  Attach.  1  (filed  Sept.  6, 

 2005)  (Qwest  Sept.  6,  2005  Ex  Parte  Letter)  (submitting  Tab  7B  showing  Qwests  retail  special  access  provisioned  (continued.) 
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 reports  that  it  provides  [REDACTED]  business  QPP  arrangements  and  [REDACTED]  business  resale  arrangements  in  the  9  wire  centers  where  we  grant  unbundling  relief.  183  We  believe  that  in  conjunction 
 with  the  extensive  facilities-  based  competition  from  Cox  (both  existing  and  potential),  this  competition  that  relies  on  Qwests  wholesale  inputs    which  must  be  priced  at  just,  reasonable  and  nondiscriminatory 
 rates  184  and  is  subject  to  Qwests  continuing  obligations  under  section  251(  c)(  4)  and  section  271(  c)    supports  our  conclusion  that  section  251(  c)(  3)  unbundling  obligations  are  no  longer  necessary  to  ensure 
 that  the  prices  and  terms  of  Qwests  telecommunications  offerings  are  just  and  reasonable  and  nondiscriminatory  under  section  10(  a)(  1).  We  emphasize  that  we  do  not  take  account  in  our  analysis  of 
 competitive  telecommunications  services  being  offered  over  UNE  loops  and  transport  provisioned  under  section  251(  c)(  3),  and  note  that  competition  based  on  UNE  loops  and  transport  make  up  a  minor  portion 
 of  the  competition  in  the  Omaha  MSA.  Qwest  provides  at  most  [REDACTED]  DS1  UNE  loops,  at  most  [REDACTED]  DS3  UNEs  loops,  and  only  [REDACTED]  DS0  UNE  loops  in  the  Omaha  MSA   
 constituting  only  a  fraction  of  the  overall  local  exchange  and  exchange  access  market  in  this  MSA.  185 
 69.  While  our  decision  today  relies  on  competitive  factors  other  than  facilities-  based  competition  from  Cox,  to  the  extent  our  decision  today  is  based  on  competition  from  Cox,  we  find  such  competition  to 

 be  sufficient  to  justify  forbearance  in  wire  center  service  areas  where  Cox  is  willing  and  able  within  a  commercially  reasonable  time  of  providing  service  to  [REDACTED]  percent  of  the  end  user  locations 
 accessible  from  that  wire  center.  186  We  believe  that  requiring  that  Cox  cover  at  least  [REDACTED] 
 (Continued  from  previous  page)  circuits  by  wire  center).  In  comparison  to  what  it  is  providing  at  wholesale  to  competitive  carriers,  Qwest  discloses 

 that,  as  of  December  2004,  it  had  the  following  number  of  retail  lines  in  service  that  it  provides  to  end  users  for  each  of  the  following  categories:  [REDACTED]  DS1s;  [REDACTED]  DS3s;  [REDACTED]  OCn  lines;  and 
 [REDACTED]  local  area  networks  (LANs).  See  Qwest  Sept.  6,  2005  Ex  Parte  Letter,  Attach.  1  (Tab  7B). 
 183  See  Qwest  May  20,  2005  Ex  Parte  Letter,  Attach.  1  at  Tab  8. 

 184  See  47  U.  S.  C.    201,  202. 
 185  See  Qwest  May  20,  2005  Ex  Parte  Letter  at  Attach.  1,  Tab  8,  Attach.  Granting  Qwest  forbearance  from  the 
 application  of  section  251(  c)(  3)  on  the  basis  of  competition  that  exists  only  due  to  section  251(  c)(  3)  would  undercut  the  very  competition  being  used  to  justify  the  forbearance,  and  we  decline  to  engage  in  that  type  of  circular 

 justification.  See,  e.  g.,  Letter  from  Tina  M.  Pidgeon,  Vice  President,  Federal  Regulatory  Affairs,  GCI,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  at  1  (filed,  Sept.  13,  2005)  (arguing  that  a  situation  where  the 
 primary  competitor  has  relied  on  UNE-  L  for  customer  acquisition  raises  very  different  issues  than  those  before  the  Commission  in  the  instant  proceeding). 

 186  A  primary  reason  we  use  wire  centers  as  opposed  to  some  other  measure  to  geographically  limit  the  forbearance 
 we  grant  Qwest  today  is  that  both  Qwest  and  Cox  submitted  data  to  us  on  a  wire  center  basis.  We  have  considered  and  reject  the  idea  of  measuring  facilities-  based  coverage  on  the  basis  of  individual  end  users.  The  costs  of 

 implementing  this  approach  would  far  exceed  the  benefits.  As  an  initial  matter,  implementing  this  approach  would  require  Cox  to  provide  Qwest  with  a  list  of  every  potential  customer  in  the  Omaha  MSA  and  to  report  whether 
 Coxs  network  covers  that  customer,  even  though  Cox  does  not  itself  rely  on  Qwests  UNEs  to  compete.  Even  if  the  burdens  of  this  large  task  were  otherwise  reasonable,  because  Cox  is  a  direct  competitor  of  Qwest,  providing  a 
 list  of  every  potential  customer  in  the  Omaha  MSA  and  disclosing  whether  Cox  is  willing  and  able,  within  a  commercially  reasonable  time,  of  providing  service  to  that  customer  does  not  serve  the  goal  of  a  competitive 
 marketplace.  In  addition,  such  an  approach  would  be  of  limited  utility  unless  updated  on  a  regular  basis.  Here  again,  we  do  not  believe  it  in  the  public  interest  to  impose  on  a  new  entrant  the  requirement  to  constantly  update  a 
 direct  incumbent  competitor  as  to  precisely  where  it  is  expanding  service.  We  also  have  considered  and  rejected  the  idea  of  measuring  facilities-  based  coverage  on  an  MSA  basis.  Using  such  a  broad  geographic  region  would  not 
 (continued.) 
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 percent  of  the  end  user  locations  in  a  wire  center  service  area  before  Qwest  obtains  forbearance  from  section  251(  c)(  3)  unbundling  obligations  in  that  wire  center  will  ensure  that  all  of  the  customers  capable 
 of  being  served  by  Qwest  from  that  wire  center  will  benefit  from  competitive  rates,  terms  and  conditions.  187  In  support  of  these  findings,  the  record  shows  that  in  these  9  wire  center  service  areas,  Cox 
 provides  approximately  [REDACTED]  residential  access  lines,  [REDACTED]  DS0  loops  to  business  customers,  [REDACTED]  DS1  loops,  [REDACTED]  DS3  loops  and  [REDACTED]  OCn  loops,  and 
 covers  approximately  [REDACTED]  percent  of  the  business  locations.  188  In  contrast,  in  the  remaining  15  wire  center  service  areas,  Cox  provides  only  approximately  [REDACTED]  residential  access  lines, 
 [REDACTED]  DS0  loops  to  business  customers,  [REDACTED]  DS1  loops,  [REDACTED]  DS3  loops  and  [REDACTED]  OCn  loops  and  covers  a  lower  percentage  of  business  locations.  189  In  addition,  the 
 service  areas  of  these  9  wire  centers  in  which  we  partially  grant  Qwests  Petition  for  forbearance  are  precisely  the  geographic  areas  where  we  expect  to  see  further  investment  and  deployment  by  Cox,  and 
 where  we  are  most  likely  to  see  other  competitors  make  the  investments  necessary  to  provide  service  without  resorting  to  unbundled  loops  and  transport.  If  we  were  to  require  that  Coxs  network  must  cover 
 100  percent  of  the  end  user  locations  in  a  wire  center  service  area  before  granting  Qwest  forbearance  in  that  wire  center,  Qwest  would  only  be  entitled  to  forbearance  relief  in  [REDACTED]  today,  despite  the 
 fact  that  Cox  provides  mass  market  services  to  [REDACTED]. 
 70.  Furthermore,  as  the  record  confirms,  a  facilities-  based  competitor  such  as  Cox  that  does  not  compete  through  reliance  on  section  251(  c)(  3)  access  to  unbundled  loops  is  unlikely  to  pattern  the 

 architecture  of  its  network  after  wire  center  service  area  boundaries.  190  We  do  not  believe  that  we  should  require  that  Coxs  network  neatly  map  to  Qwests  wire  center  service  area  boundaries  as  a  precondition  of 

 (Continued  from  previous  page)  allow  us  to  determine  precisely  where  facilities-  based  competition  exists,  which  are  the  only  locations  in  which  we 
 have  determined  that  the  forbearance  criteria  of  section  10(  a)  are  satisfied  with  respect  to  section  251(  c)(  3)  unbundling  obligations.  See  supra  note  161. 

 187  Wire  center  boundaries  do  not  necessarily  follow  political  or  demographic  boundaries;  do  not  necessarily 
 correspond  to  newspapers  circulation  boundaries,  television  or  radio  reception  boundaries  or  advertising  boundaries  (whether  broadcast  or  cable);  and  are  not  identical  to  zip  code  boundaries.  Wire  center  boundaries  are 

 most  relevant  only  to  the  incumbent  LEC  and  competitors  that  make  use  of  an  incumbent  LECs  last  mile  facilities.  There  is  no  evidence  in  the  record  to  suggest  that  Qwest  is  able  to  discern  exactly  where  its  facilities-  based 
 competitors  are  capable  of  providing  service  or  to  suggest  that  where  a  facilities-  based  competitor  covers  as  much  as  [REDACTED]  percent  of  the  end  user  locations  in  a  wire  center  that  Qwest  could  impose  prices,  terms  and 
 conditions  on  the  remaining  [REDACTED]  percent  of  customers  that  are  less  favorable  than  the  prices,  terms  and  conditions  available  to  the  other  [REDACTED]  percent  of  customers  in  that  wire  center.  See  Qwest  Teitzel  Aff.  at 
 6-  7  (stating  that  it  is  difficult  to  obtain  information  about  competitors  market  shares  in  Qwests  territory). 
 188  See  Cox  Sept.  16,  2005  Ex  Parte  Letter,  Attach.  at  1.  We  find  Coxs  submission  of  actual  evidence  of  the 
 number  of  business  locations  to  which  it  provides  service  more  compelling  than  estimates  that  are  based  on  inferences  of  the  number  of  business  locations  Cox  serves.  See  Cbeyond  et  al.  Sept.  13,  2005  Ex  Parte  Letter  at  7-8. 

 189  See  Cox  Sept.  16,  2005  Ex  Parte  Letter,  Attach.  at  1.  We  emphasize  that  because  our  analysis  relies  on  the 
 extent  to  which  facilities-  based  competition  has  taken  root  in  the  Omaha  MSA  and  the  specific  nature  of  that  competition,  the  appropriate  coverage  threshold  for  forbearance  relief    if  any    may  differ  in  other  geographic 

 markets  exhibiting  different  characteristics. 
 190  See  Cox  June  30,  2005  Ex  Parte  Letter. 
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 granting  Qwest  forbearance  relief.  In  addition,  if  we  were  to  require  Coxs  network  to  cover  100  percent  of  a  wire  center  before  granting  Qwest  forbearance  in  that  wire  center,  Cox  would  be  able  to  prevent 
 Qwest  from  obtaining  forbearance  relief  (and  may  have  the  incentive  to  do  so)  by  declining  to  provide  telecommunications  services  to  only  a  relatively  small  percentage  of  potential  customers  in  each  wire 
 center  service  area. 
 71.  For  the  reasons  explained  above,  we  disagree  with  commenters  who  contend  that  forbearing  from  application  of  unbundling  obligations  to  Qwest  will  result  in  a  duopoly.  191  In  the  present  context, 

 we  believe  that  the  facilities-  based  competition  between  Qwest  and  Cox,  in  addition  to  the  actual  and  potential  competition  from  established  competitors  which  can  rely  on  the  wholesale  access  rights  and 
 other  rights  they  have  under  sections  251(  c)  and  section  271  from  which  we  do  not  forbear,  minimizes  the  risk  of  duopoly  and  of  coordinated  behavior  or  other  anticompetitive  conduct  in  this  market.  192  We  note 
 that  the  Commission  previously  has  rejected  arguments  that  a  fully  competitive  wholesale  market  is  a  mandatory  precursor  to  a  finding  that  section  10(  a)(  1)  is  satisfied.  193 

 72.  Apart  from  intermodal  competition  from  Cox,  Qwest  contends  that  it  subject  to  additional  intermodal  competition  from  VoIP  and  wireless  providers,  and  that  it  is  appropriate  and  necessary  for 
 the  Commission  to  consider  competition  from  these  sources  as  well.  Because  Qwest  has  not  submitted  sufficient  data  concerning  the  full  substitutability  of  interconnected  VoIP  and  wireless  services  in  its 
 service  territory  in  the  Omaha  MSA,  and  because  the  data  submitted  do  not  allow  us  to  further  refine  our  wire  center  analysis,  we  do  not  rely  here  on  intermodal  competition  from  wireless  and  interconnected 
 VoIP  services  to  rationalize  forbearance  from  unbundling  obligations. 
 b.  Section  10(  a)(  2)    Protection  of  Consumers 
 73.  Section  10(  a)(  2)  of  the  forbearance  analysis  requires  us  to  determine  whether  the  section  251(  c)(  3)  access  obligations  for  loop  and  transport  elements  are  necessary  to  protect  consumers.  194  For 
 reasons  similar  to  those  that  persuade  us  that  the  section  251(  c)(  3)  access  obligations  for  loop  and  transport  elements  are  not  necessary  under  section  10(  a)(  1),  we  also  determine  that  these  access 
 obligations  are  no  longer  necessary  for  the  protection  of  consumers  in  light  of  the  transition  period  we  describe  in  the  following  paragraph.  As  we  conclude  above,  Qwest  faces  competition  in  the  local 
 exchange  and  exchange  access  markets  in  the  Omaha  MSA  from  Cox,  which  provides  service  without  relying  on  Qwests  loops  and  transport,  as  well  as  from  other  carriers.  We  also  conclude  above  that  the 
 continued  application  in  the  Omaha  MSA  of  regulatory  provisions  designed  to  promote  the  development 

 191  See,  e.  g.,  Sprint  Comments  at  16;  MCI  Comments  at  3,  10,  12-  16;  CompTel  Comments  at  19;  AT&  T  Comments 
 at  17;  AT&  T  Comments,  Declaration  of  Lee  L.  Selwyn  on  Behalf  of  AT&  T  Corp.  (AT&  T  Selwyn  Decl.)  at  63-  68,  paras.  76-  82;  Letter  from  Andrew  D.  Lipman  et  al.,  Counsel  for  McLeodUSA,  MPower  &  Pac-  West,  to  Marlene  H. 

 Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223  at  3  (filed  Sept.  12,  2005). 
 192  AT&  T  argues  that  the  presence  of  Cox  in  the  Omaha  market  makes  further  facilities-  based  entry  even  less  likely 
 than  it  would  be  absent  an  incumbent  cable  telephony  provider.  AT&  T  Selwyn  Decl.  at  33,  para.  41.  Even  assuming  AT&  Ts  contention  is  correct,  it  does  not  constitute  a  reason  to  deny  Qwest  forbearance  from  unbundling 

 obligations  under  section  251(  c)(  3). 
 193  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21509,  para.  27. 

 194  47  U.  S.  C.    160(  a)(  2). 
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 of  competitive  markets  other  than  section  251(  c)(  3)  will  ensure  that  customers  in  the  Omaha  MSA  have  competitive  choices,  and  will  continue  to  have  competitive  choices  if  we  forbear  from  applying  most 
 section  251(  c)(  3)  requirements  to  Qwest.  Therefore,  for  the  reasons  we  explained  above,  in  those  areas  of  the  Omaha  MSA  where  Qwest  faces  this  competition,  we  find  that  the  251(  c)(  3)  access  obligation  for 
 loop  and  transport  elements  is  no  longer  necessary  to  protect  consumers  in  part  because  we  adopt  a  six-month  transition  period  for  the  protection  of  consumers. 

 74.  Transition  Period.  Because  we  remove  some  unbundling  obligations  formerly  placed  on  Qwest  in  certain  wire  centers,  and  as  a  foundation  of  our  section  10(  a)(  2)  finding,  to  avoid  customer 
 disruption  we  establish  a  plan  to  facilitate  the  transition  from  section  251(  c)(  3)  unbundling  to  alternative  options    an  approach  similar  to  the  Commissions  adoption  of  transition  plans  in  other  contexts  in  which 
 it  eliminated  UNE  obligations.  195  Specifically,  we  adopt  a  six-  month  plan  for  competing  carriers  to  transition  to  alternative  facilities  or  arrangements,  including  self-  provided  facilities,  or  services  offered  by 
 Qwest.  This  transition  plan  shall  apply  only  to  the  embedded  customer  base,  and  does  not  permit  competitive  LECs  to  add  new  loop  or  transport  UNEs  pursuant  to  section  251(  c)(  3)  where  the 
 Commission  has  determined  to  forbear  from  a  section  251(  c)  unbundling  requirement.  We  believe  this  transition  period  provides  adequate  time  for  both  competitive  LECs  and  Qwest  to  perform  the  tasks 
 necessary  to  an  orderly  transition,  including  decisions  concerning  where  to  deploy,  purchase,  or  lease  facilities,  obtain  other  wholesale  facilities,  or  take  other  actions.  Consequently,  carriers  have  six  months 
 from  the  effective  date  of  this  Order  to  modify  their  interconnection  agreements,  including  completing  any  change  of  law  processes.  At  the  end  of  the  six-  month  period,  requesting  carriers  must  transition  all  of 
 their  affected  UNE  loops  and  dedicated  transport  elements  to  alternative  facilities  or  arrangements.  The  relief  we  grant  Qwest  today  is  conditioned  upon  compliance  with  the  requirements  of  this  paragraph. 

 c.  Section  10(  a)(  3)    Public  Interest 
 75.  We  also  conclude  that  relieving  Qwest  from  the  section  251(  c)(  3)  access  obligations  for  loop  and  transport  elements  is  in  the  public  interest  under  section  10(  a)(  3).  We  determined  above  that  Qwest  is 
 subject  to  a  significant  amount  of  competition  in  the  Omaha  MSA.  Based  on  this  level  of  competition,  in  conjunction  with  other  regulatory  safeguards,  we  determined  that  requiring  Qwest  to  provide  access  to 
 loops  and  transport  under  section  251(  c)(  3)  is  no  longer  necessary  for  the  protection  of  consumers  or  to  ensure  that  Qwest  will  not  engage  in  unjust  or  unreasonable  pricing  or  practices.  196  The  factors  upon 
 which  we  based  those  conclusions  also  convince  us  that  granting  Qwest  forbearance  from  the  section  251(  c)(  3)  access  obligation  for  loop  and  transport  elements  would  be  consistent  with  the  public  interest 
 under  section  10(  a)(  3).  In  addition,  we  conclude  that  granting  Qwest  relief  from  its  loop  and  transport  unbundling  obligations  in  parts  of  the  Omaha  MSA  will  help  promote  competitive  market  conditions  and 
 enhance  competition  among  providers  of  telecommunications  services  as  contemplated  by  section  10(  b).  197 

 195  See  Triennial  Review  Remand  Order,  20  FCC  Rcd  2639-  41,  paras.  195-  98;  see  also,  e.  g.,  47  C.  F.  R. 
   51.319(  a)(  4)(  iii)  (establishing  DS1  loop  transition  period),  51.319(  a)(  5)(  iii)  (establishing  DS3  loop  transition  period),  51.319(  a)(  6)(  ii)  (establishing  dark  fiber  loop  transition  period). 

 196  See  supra  at  Part  III.  D.  1.  a. 
 197  Section  10(  b)  directs  the  Commission  to  consider  whether  forbearance  will  promote  competitive  market 
 conditions,  including  the  extent  to  which  such  forbearance  will  enhance  competition  among  providers  of  (continued.) 
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 76.  Moreover,  we  conclude  that  the  forbearance  we  grant  Qwest  today  is  in  the  public  interest  for  two  significant  additional  reasons:  first,  we  conclude  that  the  costs  of  unbundling  obligations  in  parts  of 
 the  Omaha  MSA  outweigh  the  benefits,  and  second,  we  find  that  our  decision  today  will  increase  the  regulatory  parity  in  this  market.  First,  we  conclude  that  it  is  in  the  public  interest  under  section  10(  a)(  3) 
 to  forbear  from  section  251(  c)(  3)  loop  and  transport  element  unbundling  obligations  because  the  costs  of  these  unbundling  requirements  in  parts  of  the  Omaha  MSA  outweigh  the  benefits.  One  of  Congresss 
 primary  goals  in  the  1996  Act  was  the  creation  of  competitive  local  exchange  and  exchange  access  markets.  To  foster  such  competition,  Congress  gave  new  market  entrants,  which  in  1996  lacked  sufficient 
 economies  of  scale  and  scope  to  compete  effectively  in  the  local  exchange  and  exchange  access  markets,  the  right  to  compete  with  the  incumbent  LEC  in  these  markets  by  leasing  at  cost-  based  rates  key 
 components  (i.  e.,  UNEs)  of  the  incumbent  LECs  own  telecommunications  network.  198  Under  this  approach,  a  high  degree  of  regulatory  intervention  may  initially  be  required  in  order  to  generate 
 competition  among  direct  competitors  in  a  situation  where  one  carrier  owns  the  telecommunications  network  that  will  be  used  to  provide  service  to  a  single  pool  of  customers.  Such  regulatory  intervention 
 results  in  a  number  of  costs,  including  reducing  the  incentives  to  invest  in  facilities  and  innovation,  and  creating  complex  issues  of  managing  shared  facilities.  199 

 77.  While  the  costs  of  such  regulatory  intervention  may  be  warranted  in  order  to  foster  competitive  entry  into  the  local  exchange  and  exchange  access  markets  where  such  competition  would  not 
 otherwise  be  generated,  we  find  that  these  costs  are  unwarranted  and  do  not  serve  the  public  interest  once  local  exchange  and  exchange  access  markets  are  sufficiently  competitive,  as  is  the  case  in  certain  limited 
 areas  of  the  Omaha  MSA.  Specifically,  we  conclude  that  in  the  9  wire  center  service  areas  in  the  Omaha  MSA  we  identified  above,  the  costs  of  unbundling  under  section  251(  c)(  3)  are  outweighed  by  the  benefits 
 of  such  unbundling  in  light  of  the  vibrant  emerging  competition  for  local  exchange  and  exchange  access  services.  In  addition  to  furthering  the  congressional  goal  of  creating  competitive  local  exchange  markets, 
 our  decision  today  also  furthers  another  of  Congresss  primary  aims  in  the  1996  Act    to  deregulate  telecommunications  markets  to  the  extent  possible.  200  We  act  today  in  accord  with  Congresss  clear 
 intent  in  section  10  to  sunset  in  a  narrowly  tailored  fashion  any  regulatory  requirements  that  are  no  longer  necessary  in  the  public  interest  so  long  as  consumer  interests  and  competition  are  protected. 

 78.  Second,  we  conclude  that  our  decision  today  will  further  the  public  interest  by  increasing  regulatory  parity  in  the  telecommunications  services  market  in  the  Omaha  MSA.  Some  of  the 
 requirements  of  the  Act  and  our  regulations  impose  greater  burdens  on  some  carriers  than  others.  The  marketplace  for  local  exchange  services  is  a  product  of  its  history,  and  in  order  to  develop  and  maintain 

 (Continued  from  previous  page)  telecommunications  services,  and  provides  that  such  a  determination  may  be  the  basis  for  finding  that  forbearance 
 is  in  the  public  interest.  47  U.  S.  C.    160(  b). 
 198  See  47  U.  S.  C.    251(  c). 

 199  See,  e.  g.,  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2559,  para.  44  n.  131  (justifying  a  finding  of  no 
 impairment  in  certain  cases  in  part  due  to  the  known  costs  of  unbundling,  including  reducing  the  incentives  to  invest  in  facilities  and  innovation  and  creating  complex  issues  of  managing  shared  facilities);  see  also  USTA  II, 

 359  F.  3d  at  572  (stating  that  the  Commissions  impairment  determinations  may  take  into  account  the  costs  of  unbundling,  such  as  discouragement  of  investment  in  innovation);  Triennial  Review  Order,  18  FCC  Rcd  at  17148, 
 para.  284  (considering  the  costs  of  unbundling). 
 200  See  supra  note  61. 
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 competition  in  the  local  exchange  markets,  Congress  established  some  obligations  that  apply  only  to  incumbent  LECs.  Once  the  benefits  of  competition  have  been  sufficiently  realized  and  competitive 
 carriers  have  constructed  their  own  last-  mile  facilities  and  their  own  transport  facilities,  we  believe  that  it  is  in  the  public  interest  to  place  intermodal  competitors  on  an  equal  regulatory  footing  by  ending  unequal 
 regulation  of  services  provided  over  different  technological  platforms.  Even  though  Qwest  and  Cox  each  provide  service  over  their  own  facilities  to  [REDACTED]  narrowband  customers  in  the  Omaha  MSA,  201 
 Qwest  is  subject  to  unbundling  obligations  while  Cox  is  not.  Our  action  today  places  Qwest  and  Cox  on  more  equal  footing  in  those  wire  center  service  areas  where  facilities-  based  competition  is  sufficiently 
 developed  such  that  taking  this  step  to  increase  the  level  of  parity  in  the  local  exchange  market  is  appropriate. 

 79.  We  make  a  predictive  judgment,  based  on  previous  experience  in  the  market  for  wireline  local  exchange  service  served  by  Qwest  and  in  other  markets,  that  Qwest  will  not  react  to  our  decision 
 here  by  curtailing  wholesale  access  to  its  analog,  DS0-,  DS1-,  or  DS3-  capacity  facilities.  We  thus  reject  arguments  that  our  decision  today  will  strand  competitive  carriers  investments  by  denying  those 
 competitors  the  opportunity  to  use  their  own  existing  facilities  in  conjunction  with  Qwest  facilities  that  cannot  economically  be  duplicated. 

 80.  To  begin  with,  we  note  that  a  withdrawal  of  these  loop  and  transport  offerings  would  be  impermissible  under  section  271,  which  requires  Qwest  to  make  its  loop  and  transport  facilities  (among 
 others)  available  to  competitors  at  just  and  reasonable  rates  and  terms.  202  In  addition,  Qwest  offers  similar  special  access  services  pursuant  to  tariffing  or  contract  filing  requirements,  and  cannot  cease  offering 
 such  services  to  customers  without  authority  under  section  214. 
 81.  Moreover,  given  Coxs  ability  to  absorb  customers  without  any  reliance  on  Qwests  local  exchange  facilities,  Qwest  will  be  subject  to  very  strong  market  incentives  to  ensure  that  its  network  is 

 used  to  optimal  capacity    irrespective  of  any  legal  mandate  that  it  do  so.  Faced  with  aggressive  off-  net  competition  from  Cox,  we  predict  that  Qwest  will  endeavor  to  maximize  use  of  its  existing  local  exchange 
 network,  providing  service  at  retail  and  at  wholesale,  in  order  to  minimize  revenue  losses  resulting  from  customer  defections  to  Coxs  service.  In  short,  Qwest  will  prefer  that  a  customer  be  served  by  a  wireline 
 competitor  using  Qwests  facilities  at  wholesale  rates  above  that  customers  use  of  Coxs  network,  which  offers  Qwest  no  revenue  whatsoever  but  only  a  miniscule  reduction  in  its  costs.  203 

 82.  Indeed,  our  experience  indicates  that  this  is  precisely  what  has  happened  in  the  past:  When  the  D.  C.  Circuit  called  into  question  the  Commissions  rules  requiring  incumbent  LECs  to  unbundle  mass 
 market  local  circuit  switching,  Qwest  responded  by  introducing  a  commercial  product  designed  to  replace  UNE-  P    and  to  keep  customers  on  its  network    even  in  the  absence  of  a  legal  mandate  to  do  so.  Qwest 

 201  See  supra  para.  28. 
 202  See  47  U.  S.  C.    271(  c)(  2)(  B)(  iv)  (loops),  (v)  (transport);  Triennial  Review  Order,  18  FCC  Rcd  at  17384-  89, 
 paras.  653-  64  (requiring  that  facilities  made  available  under  section  271  be  provided  at  section  201  rates). 
 203  See  Qwest  July  25,  2005  Ex  Parte  Letter,  Attach.  at  2-  3  (arguing  that  Qwest  has  a  powerful  economic  and 
 market  incentive  to  provide  wholesale  products  to  its  wireline  competitors  due  to  the  intense  competition  in  the  Omaha  MSA  and  that  it  would  be  irrational  economic  behavior  for  Qwest  not  to  maximize  the  use  of  its  existing 

 network). 
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 has  entered  into  [REDACTED]  commercially  negotiated  QPP  arrangements  in  the  MSA,  of  which  [REDACTED]  are  in  the  9  wire  centers  where  we  grant  unbundling  relief. 
 83.  Here,  too,  we  predict  that  Qwests  market  incentives  will  prompt  it  to  make  its  network  available    at  competitive  rates  and  terms    for  use  in  conjunction  with  competitors  own  services  and 
 facilities.  We  will  monitor  the  accuracy  of  this  prediction  in  the  wake  of  our  decision;  in  the  event  it  proves  too  optimistic,  we  will  take  appropriate  action.  204 

 2.  Other  Requirements  of  Section  251(  c) 
 84.  We  decline  to  forbear  from  applying  to  Qwest  the  requirements  of  section  251(  c)  other  than  section  251(  c)(  3)  (with  an  exception  for  certain  collocation  obligations).  Specifically,  we  decline  to 
 forbear  from  the  requirements  of  section  251(  c)  that  Qwest  negotiate  in  good  faith  the  terms  and  conditions  of  its  section  251(  b)  and  section  251(  c)  obligations;  provide  other  carriers  with  interconnection 
 to  its  network  at  any  technically  feasible  point;  offer  its  retail  services  for  resale  at  wholesale  rates;  provide  reasonable  public  notice  of  changes  in  its  network  that  would  affect  interoperability;  and  satisfy 
 certain  collocation  obligations.  205  These  requirements  facilitate  existing  and  potential  competition  in  this  market  and  Qwest  fails  to  provide  sufficient  evidence  or  justification  for  why  these  requirements  are  no 
 longer  necessary  under  the  standards  of  section  10(  a).  We  continue  to  believe  the  requirements  of  sections  251(  c)(  1)-(  2)  and  (4)-(  6)  remain  necessary  to  ensure  just  and  reasonable  and  nondiscriminatory 
 prices  in  the  Omaha  MSA  and  to  protect  consumers  interests.  We  also  conclude  that  granting  Qwest  forbearance  from  these  obligations  would  not  be  consistent  with  the  public  interest. 

 85.  Interconnection-  Related  Obligations.  We  decline  to  grant  Qwest  forbearance  from  the  application  of  sections  251(  c)(  2),  (5)  and  (6)  of  the  Act,  with  an  exception  discussed  below.  206  Qwest 
 contends  that  the  Commission  should  forbear  from  applying  the  obligations  of  section  251(  c)  that  are  uniquely  imposed  on  incumbent  LECs,  because  competition  in  the  Omaha  MSA  has  developed  to  the 
 point  where  Qwest  is  just  one  of  several  facilities-  based  competitors.  207  Qwest  in  this  context  is  using  facilities-  based  competitor  to  mean  a  competitor  that  does  not  rely  exclusively  on  Qwests  facilities  to 

 204  To  the  extent  our  predictive  judgment  proves  incorrect,  carriers  can  file  appropriate  petitions  with  the 
 Commission  and  the  Commission  has  the  option  of  reconsidering  this  forbearance  ruling.  See  Federal-  State  Joint  Board  on  Universal  Service,  Petition  of  TracFone  Wireless,  Inc.  for  Forbearance  from  47  U.  S.  C.    214(  e)(  1)(  A) 

 and  47  C.  F.  R.    54.201(  i),  CC  Docket  No.  96-  45,  Order,  FCC  05-  165  (rel.  Sept.  8,  2005);  see  also  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21509,  para.  26  n.  85;  Petition  of  SBC  Communications  Inc.  for 
 Forbearance  from  Structural  Separation  Requirements  of  Section  272  of  the  Communications  Act  of  1934,  As  Amended,  and  Request  for  Relief  to  Provide  International  Directory  Assistance  Services,  CC  Docket  No.  97-  172, 
 Memorandum  Opinion  and  Order,  19  FCC  Rcd  5211,  5223-  24,  para.  19  n.  66  (2004);  CellNet  Communications,  Inc.  v.  FCC,  149  F.  3d  429,  442  (6th  Cir.  1998). 

 205  47  U.  S.  C.    251(  c)(  1)  (duty  to  negotiate  in  good  faith),  (2)  (interconnection),  (4)  (resale),  (5)  (notice  of 
 changes),  (6)  (collocation). 
 206  47  U.  S.  C.    251(  c)(  2),  (5),  (6). 

 207  Petition  at  24. 
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 compete.  208  But  while  a  substantial  portion  of  customers  within  the  9  wire  centers  at  issue  receive  service  from  a  Qwest  competitor  not  relying  on  a  Qwest  loop,  a  Qwest  switch,  or  Qwest  dedicated  transport,  all 
 of  its  competitors  in  the  Omaha  MSA  rely  extensively  on  access  to  Qwests  network  in  order  to  exchange  telecommunications  traffic.  209  Even  Cox,  which  is  the  competitive  LEC  with  the  most  extensive 
 facilities-  based  coverage  in  Qwests  territory  in  the  Omaha  MSA,  depends  on  Qwest  for  interconnection,  collocation,  and  reasonable  notice  of  changes  in  Qwests  network  in  order  to  exchange 
 telecommunications  traffic  in  the  Omaha  MSA.  Cox  reports  that  approximately  [REDACTED]  percent  of  all  the  traffic  that  it  sends  and  receives  in  the  Omaha  MSA  depends  on  section  251(  c)(  2) 
 interconnection  and  collocation    the  effectiveness  of  which  depends  in  part  on  reasonable  notice  of  network  changes.  210  Other  competitive  LECs,  which  have  less  network  coverage  in  this  geographic 
 market  than  Cox,  presumably  depend  even  more  than  Cox  on  Qwests  satisfaction  of  its  section  251(  c)  obligations. 

 86.  Qwest  does  not  discuss  collocation  or  its  obligations  with  respect  to  providing  reasonable  notice  of  network  changes  in  detail.  211  Regarding  interconnection,  Qwest  states  that  section  251(  c)(  2) 
 direct  interconnection  at  any  technically  feasible  point  is  not  necessary  in  the  Omaha  MSA  because  competitive  LECs  can  still  rely  on  the  general  duty  of  section  251(  a)(  1)  that  requires  all 
 telecommunications  carriers  to  interconnect  directly  or  indirectly.  212  Qwest  argues  that  competitive  LECs  right  to  indirect  interconnection  is  sufficient  to  protect  the  interests  set  forth  in  section  10(  a) 
 because  Qwests  business  interests  will  force  it  to  negotiate  agreements  with  wholesale  providers  of  interconnection.  213  We  reject  Qwests  position  on  this  issue.  Forbearing  from  section  251(  c)(  2) 
 interconnection  and  related  section  251(  c)  requirements  such  as  collocation  likely  would  give  Qwest,  which  is  the  only  carrier  in  the  Omaha  MSA  to  have  a  ubiquitous  network,  the  ability  to  exercise  market 

 208  Qwest  clarifies  that  when  it  refers  to  competitors  as  facilities-  based,  it  means  that  the  competitors  have  placed 
 fiber  in  portions  of  the  Omaha  MSA  that  overbuild  portions  of  Qwests  legacy  network,  primarily  for  purposes  of  interoffice  transport  and  carriage  of  long  distance  traffic.  Qwest  Reply  at  29. 

 209  See  Nebraska  PSC  Reply  at  2;  Iowa  Utils.  Bd.  Comments  at  3;  Cox  Comments  at  31-  32;  ALTS  Comments  at  3, 
 5-  6;  TWTC  Comments  at  2;  McLeodUSA  Comments  at  8-  9;  Sprint  Comments  at  7;  MCI  Comments  at  9,  11;  CompTel  Comments  at  1;  AT&  T  Comments  at  32;  Qwest  Reply  at  29. 

 210  See  Cox  June  30,  2005  Ex  Parte  Letter  at  2;  see  also  Letter  from  J.  G.  Harrington,  Counsel  to  Cox,  to  Marlene  H. 
 Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  Attach.  at  1  (filed  Aug.  24,  2005)  (stating  that  [  e]  ven  though  Cox  uses  its  own  network  to  provide  competitive  phone  services  to  Omaha  consumers,  Cox  still  must  rely  on  the  rights 

 granted  it  as  a  competitive  LEC  for  interconnection  and  other  items  under  section  251(  c)). 
 211  See,  e.  g.,  Qwest  July  25,  2005  Ex  Parte  Letter,  Attach.  at  5-  6  (arguing  that  Qwest  has  fully  implemented 
 section  251(  c)(  6)  through  its  collocation  policies);  Letter  from  Cronan  OConnell,  Vice  President    Federal  Regulatory  Affairs,  Qwest,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223,  Attach.  1  at  5  (filed 

 Aug.  30,  2005)  (Qwest  Aug.  30,  2005  Ex  Parte  Letter)  (noting  that  Cox  has  collocated  in  two  Qwest  offices  for  the  purpose  of  interconnection).  Indeed,  some  commenters  assumed  from  the  evidence  Qwest  provided  that  it  was  not 
 seeking  relief  from  section  251(  c)  obligations  other  than  section  251(  c)(  3).  See,  e.  g.,  Sprint  Comments  at  2,  8-  9. 
 212  Petition  at  26-  27;  see  also  47  U.  S.  C.    251(  a)(  1)  (providing  that  each  telecommunications  carrier  has  the  duty  to 
 interconnect  directly  or  indirectly  with  the  facilities  and  equipment  of  other  telecommunications  carriers)  (emphasis  added). 

 213  Qwest  Reply  at  32-  33. 
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 power  over  interconnection  in  this  market.  214  Due  to  the  ubiquity  of  Qwests  network  and  its  direct  connection  obligations,  competitive  carriers  have  constructed  their  networks  using  direct  interconnection 
 with  Qwest  and  collocation  as  a  way  to  interconnect  with  all  of  the  carriers  in  the  Omaha  MSA.  215  If  we  were  to  forbear  from  section  251(  c)(  2),  we  believe  Qwest  would  be  able  to  exercise  market  power  by 
 refusing  directly  to  connect  to  its  competitors  and  forcing  them  to  reconfigure  their  networks  in  order  to  exchange  traffic    an  expensive  proposition    or  pay  Qwest  significantly  higher  interconnection  fees. 
 Qwest  has  not  made  any  showing  that  alternative  interconnection  arrangements  are  available.  216  In  the  absence  of  any  substantial  record  evidence  to  the  contrary,  we  determine  that  forbearance  from  the 
 obligations  of  sections  251(  c)(  2),  (5)  and  (6)  is  not  justified  under  any  of  the  three  prongs  of  section  10(  a).  We  find  that  these  interconnection-  related  obligations  are  necessary  to  ensure  just,  reasonable  and 
 nondiscriminatory  prices  and  practices  in  the  Omaha  MSA,  and  necessary  to  protect  competition  and  consumers.  Consistent  with  and  ancillary  to  our  decision  above  to  forbear  from  section  251(  c)(  3)  loop 
 and  transport  unbundling  obligations,  however,  we  forbear  from  section  251(  c)(  6)  collocation  obligations  in  the  same  9  wire  centers  to  the  extent  such  collocation  would  be  used  to  access  UNEs,  but  not  to  the 
 extent  it  is  used  to  access  interconnection.  217 
 87.  Good  Faith  Negotiation.  We  also  decline  to  grant  Qwest  forbearance  from  its  section  251(  c)(  1)  duty  to  negotiate  in  good  faith  the  terms  and  conditions  of  agreements  to  fulfill  its  obligations 

 under  sections  251(  b)  and  (c).  218  Qwest  does  not  provide  any  compelling  justification  for  why  it  should  be  exempt  from  this  obligation,  nor  does  it  address  the  reciprocal  nature  of  section  251(  c)(  1).  Congress 
 placed  the  duty  to  negotiate  the  agreements  necessary  under  sections  251(  b)  and  (c)  in  good  faith  not  only  on  incumbent  LECs  such  as  Qwest,  but  also  on  the  other  parties  to  such  agreements    i.  e.,  the  requesting 

 214  See,  e.  g.,  AT&  T  Selwyn  Decl.  at  68-  9  (arguing  that  in  the  absence  of  section  251(  c)(  2)  interconnection 
 obligations  Qwest  would  no  longer  be  obligated  to  provide  efficient  points  of  interconnection,  thus  driving  up  interconnection  costs  by  forcing  competitive  LECs  to  incur  substantial  backhaul  and  transport  costs). 

 215  See,  e.  g.,  Letter  from  J.  G.  Harrington,  Counsel  to  Cox,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No. 
 04-  223,  Attach.  at  1-  2  (filed  Aug.  12,  2005)  (Cox  Aug.  12,  2005  Ex  Parte  Letter)  (reporting  that  Cox  relies  on  Qwest  for  interconnection  with  about  half  of  the  other  carriers  in  the  Omaha  market).  See  also  Cox  Comments  at 

 26.  It  rarely  would  be  efficient  for  each  competitor  in  a  market  to  interconnect  directly  to  every  other  competitor,  and  carriers  therefore  generally  interconnect  directly  only  with  those  carriers  with  whom  they  exchange  a  significant 
 amount  of  traffic.  See  Cox  Comments  at  27  (stating  that  for  more  than  half  of  the  carriers  to  which  Cox  sends  traffic,  call  volumes  are  simply  too  low  to  warrant  direct  interconnection  and  the  same  is  true  for  carriers  that  send 
 traffic  to  Cox).  Competitive  carriers  that  do  not  directly  connect  to  one  another  then  rely  on  the  incumbent  LEC  to  provide  a  transit  service  to  carry  traffic  between  their  points  of  connection  with  the  incumbent  LEC,  which  often  are 
 collocated.  See,  e.  g.,  Cox  Comments  at  27. 
 216  We  reject  Qwests  Petition  for  the  reasons  above  and  are  not  convinced  by  Qwests  argument  that  we  should 
 grant  its  Petition  because  no  carrier  opposing  its  Petition    and  specifically,  Cox    has  explained  why  it  could  not  interconnect  with  Qwest  through  an  alternative  means.  See  Qwest  Aug.  30,  2005  Ex  Parte  Letter,  Attach.  1  at  5.  In 

 any  event,  Cox  has  subsequently  explained  in  detail  why  it  believes  interconnection  and  collocation  are  important  to  competition  and  why  forbearance  for  these  regulatory  obligations  should  be  denied.  See  Cox  Sept.  14,  2005  Ex 
 Parte  Letter,  Attach.  at  2-  5. 
 217  For  the  sake  of  brevity,  we  incorporate  here  by  reference  the  reasons  for  forbearance  given  above  in  Part  III.  D.  1. 

 218  See  Petition  at  22-  29. 
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 telecommunications  carriers.  219  We  do  not  believe  it  would  be  in  the  public  interest  to  grant  Qwest  forbearance  from  this  duty,  particularly  when  the  requesting  telecommunications  carrier  would  remain 
 subject  to  the  obligations  of  section  251(  c)(  1).  Nor  are  we  convinced  that  the  other  prongs  of  section  10(  a)  are  satisfied.  In  the  absence  of  evidence  to  the  contrary,  we  believe  that  section  251(  c)(  1)  remains 
 necessary  to  ensure  just  and  reasonable  and  nondiscriminatory  pricing  and  practices  in  this  market. 
 88.  Resale.  We  deny  Qwests  Petition  to  the  extent  it  seeks  forbearance  from  the  resale  obligations  of  section  251(  c)(  4).  220  Qwest  contends  that  competitors  in  the  Omaha  MSA  no  longer 

 depend  on  section  251(  c)(  4)  resale,  and  argues  that  to  the  extent  such  reliance  remains  necessary,  its  competitors  could  rely  instead  on  resale  offered  pursuant  to  section  251(  b)(  1).  221  Qwest  has  not 
 persuaded  us  that  section  251(  c)(  4)  resale  is  no  longer  necessary  in  the  Omaha  MSA  to  ensure  reasonable  and  nondiscriminatory  pricing,  and  ensure  that  consumers  interests  and  the  public  interest  are  protected 
 under  section  10(  a).  Particularly  because  we  have  determined  to  forbear  from  section  251(  c)(  3)  loop  and  transport  element  unbundling  obligations,  222  we  conclude  that  section  251(  c)(  4)  resale  continues  to  be 
 necessary  to  existing  competition  and  makes  future  competitive  entry  possible.  223  As  Qwest  itself  states: 
 [R]  esale  of  Qwests  existing  retail  services  represents  a  non-  capital  intensive  means  for  CLECs  to  enter  the  market  and  build  a  core  customer 

 base,  albeit  with  profit  margin  potential  lower  than  that  available  via  delivery  of  service  via  CLEC-  owned  facilities  or  wholesale  network 
 facilities  leased  from  Qwest.  .  .  .  [E]  specially  for  new  market  entrants,  resale  remains  a  viable  option  as  a  means  to  quickly  and  with  little 
 investment  enter  any  portion  of  the  Omaha-  Council  Bluffs  market  to 

 219  See  47  U.  S.  C.    251(  c)(  1). 
 220  See,  e.  g.,  Petition  at  21,  23,  and  26;  see  also  Qwest  Reply  at  32;  Petition  at  24  (  It  is  clear  that  the  Commission 
 cannot  maintain  resale  .  .  .  [and  other]  requirements  that  are  uniquely  imposed  on  ILECs  and  BOCs  in  markets  where  competition  has  developed  to  the  point  where  the  LEC/  BOC  is  just  one  of  several  facilities-  based 

 competitors.). 
 221  See,  e.  g.,  Petition  at  iv  (stating  that  the  competition  in  the  Omaha  MSA  is  mature  and  does  not  rely  on  resale); 
 id.  at  26. 
 222  See  supra  Part  III.  D.  1. 

 223  Some  competitors  in  the  Omaha  MSA  currently  rely  on  section  251(  c)(  4)  resale  to  compete.  For  example,  while 
 McLeodUSA  today  has  constructed  some  of  its  own  facilities  in  the  Omaha  MSA,  see  Qwest  May  20,  2005  Ex  Parte  Letter  at  Attach.  1,  Tab  3,  Map  3B  (showing  McLeodUSA  fiber  routes),  McLeodUSA  also  relies  on  section 

 251(  c)(  4)  resale  in  order  to  compete  in  this  market.  See  McLeodUSA  Comments  at  8;  Qwest  Teitzel  Aff.  at  18;  CompTel  Comments  at  3  (reporting  that  McLeodUSA  competes  in  part  through  resale).  In  addition,  we  find  that 
 forbearing  from  section  251(  c)(  4)  resale  requirements  likely  would  restrict  the  ability  of  new  entrants  to  enter  the  telecommunications  market  in  the  Omaha  MSA  in  the  future.  See  Local  Competition  Order,  11  FCC  Rcd  at  15499, 
 15954,  para.  907  (stating  that  [  r]  esale  will  be  an  important  entry  strategy  for  many  new  entrants);  cf.  also  Petition  at  16-  17  (  With  the  adoption  of  the  1996  Act,  Congress  implemented  a  comprehensive  system  of  market-  opening 
 provisions  that  benefit  both  facilities-  based  carriers  and  pure  resellers.  This  flexibility  allows  competitive  providers  to  increase  their  market  presence  through  resale  beyond  the  reach  of  their  existing  networks.  It  also  allows  them  to 
 increase  their  market  share  more  quickly  than  would  be  possible  solely  through  expansion  of  their  own  networks.);  Qwest  Teitzel  Aff.  at  5-  6. 
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 attract  a  customer  base  of  sufficient  size  to  justify  further  investment  in  CLEC-  owned  switches  and  facilities.  224 
 89.  We  are  not  persuaded  by  Qwests  argument  that  section  251(  c)(  4)  resale  is  unnecessary  in  the  Omaha  MSA  because  competitors  would  still  have  a  right  to  resell  Qwests  services  pursuant  to  section 
 251(  b)(  1).  225  Under  the  Act,  all  LECs  must  allow  the  resale  of  their  telecommunications  services  and  not  place  unreasonable  or  discriminatory  conditions  or  limitations  on  that  resale.  226  However,  unlike  the 
 section  251(  c)(  4)  resale  obligation,  section  251(  b)(  1)  has  no  wholesale  pricing  requirement.  Despite  the  amount  of  retail  competition  in  the  Omaha  MSA,  particularly  for  narrowband  voice  services,  Qwest  has 
 not  demonstrated  that  resale  at  avoided-  cost  discount  is  no  longer  necessary  to  competition  in  the  Omaha  MSA.  Unlike  access  obtained  under  a  facilities  unbundling  regime,  in  a  resale  service  situation  the 
 incumbent  LEC  continues  to  have  control  of  the  physical  lines,  making  it  difficult  for  competitive  LECs  to  distinguish  their  resale  offering  from  the  offering  of  the  incumbent  LEC  on  the  basis  of  innovative 
 products  or  features.  Hence,  if  a  competitive  LEC  is  unable  to  distinguish  its  resale  service  on  the  basis  of  price,  the  value  of  a  resale  option  to  the  creation  of  competitive  markets  is  diminished.  In  addition, 
 because  the  incumbent  LEC  continues  to  receive  a  high  percentage  of  the  revenue  from  resale  pursuant  to  section  251(  c)(  4),  we  find  that  resale  does  not  impose  costs  similar  to  those  that  accompany  unbundling 
 pursuant  to  section  251(  c)(  3).  227  Moreover,  we  granted  Qwest  forbearance  from  its  section  251(  c)(  3)  loop  and  transport  unbundling  obligations  in  part  due  to  competitive  LECs  continued  right  to  access  certain 
 regulated  wholesale  services  in  the  Omaha  MSA,  including  resale  pursuant  to  section  251(  c)(  4).  We  conclude  that  Qwest  therefore  has  not  shown  that  section  251(  c)(  4)  is  no  longer  necessary  to  protect 
 consumers  interests  or  ensure  just  and  reasonable  and  nondiscriminatory  pricing,  and  has  not  shown  that  forbearing  from  section  251(  c)(  4)  would  enhance  competitive  market  conditions.  228 

 E.  Forbearance  from  271(  c)(  2)(  B)  Checklist  Requirements 
 90.  For  the  reasons  discussed  below,  we  decline  pursuant  to  section  10(  a)  to  forbear  from  the  requirements  of  section  271(  c)(  2)(  B)  as  they  apply  to  Qwest  in  the  Omaha  MSA  with  the  exception  of 

 section  271(  c)(  2)(  B)(  ii).  Section  271(  c)(  2)(  B)  sets  forth  what  commonly  are  referred  to  as  the  competitive  checklist  requirements.  Before  a  BOC  lawfully  may  provide  interLATA  services  in  a  state,  it 
 must  demonstrate  that  it  satisfies  these  competitive  checklist  items.  229  In  addition,  after  a  BOC  has  obtained  such  authority,  it  must  continue  to  satisfy  the  competitive  checklist  requirements  of  section 

 224  See  Qwest  Teitzel  Aff.  at  5-  6. 
 225  See  Petition  at  26;  see  also  Qwest  Reply  at  32-  33;  47  U.  S.  C.    251(  b)(  1),  (c)(  4). 
 226  47  U.  S.  C.    251(  b)(  1). 
 227  See  Telecommunications  Competition  Survey  for  Retail  Local  Voice  Services  in  Iowa,  Iowa  Utils.  Bd.  January 
 2004  Report,  at  12  (reporting  that  in  Iowa  Qwest  receives  89.73  percent  of  its  tariffed  retail  rate  when  a  competitive  LEC  resells  Qwests  residential  basic  exchange  access  lines). 

 228  In  light  of  other  relief  the  Commission  recently  has  given  for  broadband  services,  it  is  likely  that  we  could  find 
 the  obligation  to  offer  resale  of  broadband  services  under  section  251(  c)(  4)  unnecessary  on  a  more  developed  record. 

 229  47  U.  S.  C.    271(  a)  (  Neither  a  Bell  operating  company,  nor  any  affiliate  of  a  Bell  operating  company,  may 
 provide  interLATA  services  except  as  provided  in  this  section.);  see  also  id.    271(  d). 
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 271(  c)(  2)(  B).  230  Because  Qwest  is  a  BOC  that  has  received  section  271  authority  in  Nebraska  and  Iowa,  231  it  is  subject  to  the  section  271  competitive  checklist  requirements. 
 91.  We  conduct  our  section  10  analysis  in  light  of  the  Acts  overall  goals  of  promoting  local  competition  and  encouraging  broadband  deployment.  232  The  Commission  previously  has  considered  the 
 statutory  language,  the  framework  of  the  1996  Act,  its  legislative  history,  and  Congresss  policy  objectives,  to  conclude  that  the  Act  directs  [the  Commission]  to  use,  among  other  authority,  our 
 forbearance  authority  under  section  10(  a)  to  encourage  the  deployment  of  advanced  services.  233  The  statutory  language  and  framework  of  the  1996  Act,  along  with  other  factors,  also  reveal  that  with  regard 
 to  legacy  elements,  which  already  are  ubiquitously  deployed,  Congresss  primary  aim  is  to  foster  a  competitive  marketplace  for  telecommunications  services  provided  over  those  facilities.  Our  analysis 
 below  is  informed  by  and  remains  faithful  to  the  direction  we  have  received  from  Congress.  The  Commission  already  has  granted  Qwest  substantial  forbearance  relief  from  obligations  arising  under 
 section  271  related  to  certain  broadband  facilities;  we  decline  to  grant  Qwest  comparable  relief  it  now  seeks  related  to  certain  legacy  elements. 

 1.  Forbearance  Analysis 
 92.  Section  10(  a)  of  the  Act  requires  that  we  forbear  from  applying  the  section  271(  c)(  2)(  B)  checklist  requirements  to  Qwest  if  we  determine  that  each  of  three  statutory  forbearance  criteria  is 
 satisfied.  Qwest  seeks  forbearance  from  seven  of  the  fourteen  competitive  checklist  items  contained  in  section  271(  c)(  2)(  B),  namely  checklist  items  1  through  6  and  14.  In  our  analysis  below,  we  group  these 
 requirements  into  three  categories.  The  first  category  consists  of  checklist  items  1,  2,  and  14,  which  each  incorporate  obligations  of  section  251(  c)  by  reference.  The  second  category  consists  of  checklist  item  3, 
 which  incorporates  the  obligations  of  section  224  by  reference.  The  third  category  consists  of  checklist  items  4  through  6,  which  are  independent  obligations  under  the  Act.  Except  as  specifically  provided 
 below,  we  conclude  with  respect  to  all  three  categories  and  based  on  the  current  record  that  forbearance  is  not  warranted. 

 a.  Checklist  Items  1,  2  &  14  (Interconnection,  UNEs  &  Resale) 
 93.  We  conclude  that  Qwest  has  demonstrated  that  it  is  entitled  to  forbearance  from  its  obligations  to  provide  interconnection,  UNEs  and  resale  pursuant  to  section  271(  c)(  2)(  B)(  i),  (ii),  and  (xiv) 
 (i.  e.,  checklist  items  1,  2,  and  14)  only  to  the  same  extent  that  it  has  demonstrated  that  it  is  entitled  to  forbearance  from  the  requirements  of  sections  251(  c)(  2)-(  4).  234  Therefore,  we  grant  Qwests  Petition  to 

 230  47  U.  S.  C.    271(  c)(  2)(  B)  (competitive  checklist  requirements),  (d)(  6)  (ongoing  nature  of  requirements). 
 231  See  Qwest  IA/  NE  Section  271  Order,  17  FCC  Rcd  26303  (2002). 
 232  See  Preamble  to  the  1996  Act,  110  Stat.  56,  56  (1996);  see  also  Pub.  L.  104-  104,  Title  VII,    706,  Feb.  8,  1996, 
 110  Stat.  153,  reproduced  in  the  notes  under  47  U.  S.  C.    157  (Section  706). 
 233  Advanced  Services  Order,  13  FCC  Rcd  24012,  24047,  para.  77  (1998)  (discussing  the  relationship  between 
 section  10  and  section  706). 
 234  Checklist  item  1  requires  Qwest  to  provide  [  i]  nterconnection  in  accordance  with  the  requirements  of  sections 
 251(  c)(  2)  and  252(  d)(  1).  47  U.  S.  C.    271(  c)(  2)(  B)(  i).  Checklist  item  2  requires  Qwest  to  provide  nondiscriminatory  access  to  network  elements  in  accordance  with  the  requirements  of  sections  251(  c)(  3)  and 

 (continued.) 
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 the  extent  it  seeks  forbearance  from  checklist  item  2  as  that  requirement  applies  to  UNE  loops  and  transport  in  the  9  wire  centers  where  we  have  granted  relief  from  the  analogous  section  251(  c)(  3) 
 obligation.  In  all  other  respects,  we  decline  to  grant  Qwest  forbearance  from  the  application  of  checklist  items  1,  2,  and  14. 

 94.  The  scope  of  the  requirements  of  checklist  items  1,  2,  and  14  is  coextensive  with  specific  requirements  set  forth  in  section  251(  c)  and  section  252(  d).  Specifically,  under  checklist  items  1,  2,  and 
 14,  a  BOC  must  provide  interconnection,  UNEs  and  resale  in  accordance  with  the  requirements  of  the  relevant  subsections  of  251(  c)  and  252(  d).  235  As  a  result,  as  the  Commission  and  reviewing  courts 
 previously  have  stated,  if  a  BOC  must  provide  interconnection,  UNEs  or  resale  pursuant  to  sections  251(  c)(  2)-(  4),  it  must  also  provide  interconnection,  UNEs  or  resale  pursuant  to  checklist  items  1,  2,  and 
 14  of  section  271(  c)(  2)(  B).  236  Therefore,  it  would  not  make  sense  for  the  Commission  to  forbear  from  sections  271(  c)(  2)(  B)(  i),  (ii),  and  (xiv)  while  the  obligations  of  sections  251(  c)(  2)-(  4)  remain  in  effect. 
 Similarly,  it  would  not  make  sense  for  the  Commission  to  deny  forbearance  from  sections  271(  c)(  2)(  B)(  i),  (ii),  and  (xiv)  if  a  carrier  has  no  corresponding  obligations  under  sections  251(  c)(  2)-(  4). 

 95.  With  the  exception  of  Qwests  obligation  to  provide  unbundled  access  to  loops  and  transport  pursuant  to  section  251(  c)(  3)  discussed  separately  just  below,  Qwest  remains  subject  to  the  requirements 
 of  sections  251(  c)(  2)-(  4).  We  therefore  find  it  would  not  make  sense  for  us  to  forbear  from  the  obligations  of  checklist  items  1,  2,  and  14  except  for  the  obligation  to  provide  unbundled  access  to  loops 
 and  transport,  and  we  decline  to  do  so  for  the  reasons  we  state  below.  Our  decision  also  is  based  on  the  section  10(  a)  analysis  that  we  explained  above  regarding  sections  251(  c)(  2)-(  4),  which  is  relevant  to  and 
 also  supports  our  decision  regarding  271(  c)(  2)(  B)(  i),  (ii),  and  (xiv).  237  In  addition,  again  due  to  the  linkage  between  these  two  sets  of  statutory  provisions,  even  if  the  Commission  were  to  grant  Qwest 
 forbearance  from  the  application  of  checklist  items  1,  2  and  14  other  than  as  applied  to  narrowband  loops,  Qwest  would  not  obtain  any  material  regulatory  relief  today.  Qwest  has  not  identified  a  single  action  it 
 takes  or  obligation  it  incurs  pursuant  to  sections  271(  c)(  2)(  B)(  i),  (ii)  or  (xiv)  that  it  would  no  longer  need  to  perform  or  incur  if  we  were  to  grant  forbearance  relief  from  the  application  of  those  checklist  items  if 
 we  did  not  also  grant  Qwest  forbearance  relief  from  requirements  arising  under  section  251(  c)(  2)-(  4).  We  (Continued  from  previous  page) 
 252(  d)(  1).  47  U.  S.  C.    271(  c)(  2)(  B)(  ii).  Checklist  item  14  requires  Qwest  to  make  telecommunications  services  .  .  .  available  for  resale  in  accordance  with  the  requirements  of  sections  251(  c)(  4)  and  252(  d)(  3).  47  U.  S.  C. 
   271(  c)(  2)(  B)(  xiv);  see  also  Application  of  Verizon  Pennsylvania,  Inc.,  Verizon  Long  Distance,  Verizon  Enterprise  Solutions,  Verizon  Global  Networks,  Inc.,  and  Verizon  Select  Services  Inc.  for  Authorization  to  Provide  In-  region, 
 InterLATA  Services  in  Pennsylvania,  16  FCC  Rcd  17419,  17519-  30,  17542,  paras.  17-  44,  67  (2001)  (Verizon  Pennsylvania  Section  271  Order). 

 235  See  47  U.  S.  C.    271(  c)(  2)(  B)(  i),  (ii),  (xiv). 
 236  See  Developing  a  Unified  Intercarrier  Compensation  Regime,  CC  Docket  No.  01-  92,  Further  Notice  of  Proposed 
 Rulemaking,  20  FCC  Rcd  4685,  4742,  n.  374  (2005)  (seeking  comment  on  whether  the  statutory  language  regarding  the  duty  to  interconnect  directly  or  indirectly  under  section  251(  a)  should  be  read  to  encompass  an  obligation  to 

 provide  transit  service  and  stating  that  a  determination  that  incumbent  LECs  have  a  transiting  obligation  pursuant  to  section  251(  c)(  2)  would  also  trigger  an  obligation  to  provide  such  a  service  under  section  271(  c)(  2)(  B)(  i));  see 
 also  Sprint  Communications  Co.  L.  P.  v.  FCC,  274  F.  3d  549  (D.  C.  Cir.  2001)  (stating  that  some  of  the  section  271(  c)(  2)(  B)  requirements  are  simply  incorporations  by  reference  of  obligations  independently  imposed  on  the 
 BOCs  by    251-  52  of  the  Act). 
 237  For  the  sake  of  brevity,  we  do  not  restate  our  section  10(  a)  analysis  in  full  here. 
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 therefore  deny  Qwests  request  for  forbearance  from  checklist  items  1  and  14,  and  checklist  item  2  except  as  discussed  below. 
 96.  Unbundled  Loops  and  Transport  Under  Checklist  Item  2.  Unlike  network  elements  for  which  the  Commission  has  found  impairment  and  that  Qwest  must  continue  to  provide  on  an  unbundled  basis 
 under  section  251(  c)(  3),  loops  and  transport  are  a  special  case  because  the  Commission  has  found  impairment  but  in  todays  Order  we  determine  not  to  apply  to  Qwest  the  section  251(  c)(  3)  obligation  to 
 unbundle  these  elements  in  the  Omaha  MSA.  Because  checklist  item  2  incorporates  and  is  coextensive  with  section  251(  c)(  3),  we  grant  Qwest  forbearance  from  checklist  item  2  requirements  for  loops  and 
 transport.  238  Just  as  it  would  not  make  sense  to  forbear  from  this  checklist  item  if  Qwests  correlative  obligation  in  section  251(  c)(  3)  remains  in  effect,  now  that  we  have  forborne  from  section  251(  c)(  3)  as 
 applied  to  loops  and  transport,  it  also  would  not  make  sense  to  decline  to  forbear  from  checklist  item  2.  As  explained  above,  the  scope  of  these  obligations  is  identical  because  checklist  item  2  simply  requires 
 Qwest  to  provide  UNEs  in  accordance  with  the  requirements  of  sections  251(  c)(  3)  under  the  applicable  pricing  requirement  set  forth  in  section  252(  d)(  1).  We  stress,  however,  that  Qwest  remains  subject  to  the 
 obligation  to  provide  wholesale  access  to  loops  as  required  by  checklist  item  4  and  to  provide  wholesale  access  to  transport  as  required  by  checklist  item  5.  As  we  discuss  below,  the  scope  of  checklist  items  4 
 and  5  and  the  pricing  requirements  that  apply  to  those  obligations  differ  from  the  scope  and  pricing  standard  of  checklist  item  2.  In  addition,  part  of  the  reason  we  are  able  to  grant  Qwest  forbearance  from 
 section  251(  c)(  3)  unbundling  obligations  for  loops  and  transport  is  because  a  comparable  wholesale  access  obligation  exists  under  section  271(  c). 

 b.  Checklist  Item  3  (Poles,  Ducts,  Conduits,  and  Rights  of  Way) 
 97.  We  deny  Qwests  Petition  for  forbearance  to  the  extent  it  seeks  relief  from  its  obligations  arising  under  checklist  item  3  in  the  Omaha  MSA,  which  requires  Qwest  to  provide  nondiscriminatory 
 access  to  the  poles,  ducts,  conduits,  and  rights  of  way  it  owns  or  controls  at  just  and  reasonable  rates  in  accordance  with  the  requirements  of  section  224.  239  Qwest  has  not  asked  for  relief  from  section  224  or 
 section  251(  b)(  4),  240  or  any  regulations  promulgated  pursuant  to  those  statutory  provisions,  and  we  decline  at  the  present  time  to  grant  such  relief  sua  sponte.  241  Because  Qwests  obligations  under  checklist 
 item  3  incorporate  the  obligations  of  section  224  by  reference,  and  are  mirrored  in  section  251(  b)(  4),  even  if  the  Commission  were  to  grant  Qwest  relief  from  its  obligations  under  checklist  item  3,  Qwest  would 
 not  obtain  any  material  regulatory  relief  today  in  the  absence  of  comparable  relief  under  section  224  and  section  251(  b)(  4).  It  therefore  would  not  make  sense  for  the  Commission  to  grant  such  relief  and  we 
 decline  to  do  so. 

 238  In  accord  with  our  decision  above,  we  do  not  forbear  from  checklist  2  requirements  with  respect  to  911  and  E911 
 databases  or  operations  support  systems.  See  supra  note  150. 
 239  See  47  U.  S.  C.    271(  c)(  2)(  B)(  iii). 

 240  47  U.  S.  C.    251(  b)(  4)  (providing  that  all  LECs  have  the  duty  to  afford  access  to  the  poles,  ducts,  conduits,  and 
 rights-  of-  way  of  such  carrier  to  competing  providers  of  telecommunications  services  on  rates,  terms,  and  conditions  that  are  consistent  with  section  224);  see  also  Qwest  July  27,  2005  Ex  Parte  Letter,  Attach.  1,  at  1  (stating  that 

 Qwest  is  not  seeking  relief  from  the  normal  rules  applicable  to  other  LECs  .  .  .  under  Section  251(  b)). 
 241  See,  e.  g.,  47  C.  F.  R.    1.1401-  18;  see  also  47  U.  S.  C.    160(  a)  (granting  the  Commission  authority  to  grant 
 forbearance  if  certain  criteria  are  satisfied). 
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 98.  In  addition,  we  find  that  enforcement  of  checklist  item  3  in  the  Omaha  MSA  remains  necessary  under  the  standards  of  sections  10(  a)(  1)  and  (2).  Qwest  has  not  submitted  evidence  in  this 
 proceeding  to  show  why  this  provision  is  no  longer  necessary  to  ensure  that  Qwests  charges  and  practices  for  access  to  its  poles,  ducts,  conduits  and  rights  of  way  are  just,  reasonable  and 
 nondiscriminatory  or  that  this  provision  is  unnecessary  for  the  protection  of  consumers,  nor  does  any  commenter  support  Qwests  Petition  in  this  regard.  242  Particularly  because  the  Commission  has  never 
 granted  forbearance  from  requirements  to  make  poles,  ducts,  conduits  and  rights  of  way  available    obligations  closely  linked  to  the  creation  of  facilities-  based  competition    we  believe  it  is  incumbent  on 
 Qwest  to  explain  in  detail  why  the  Commission  should  forbear  from  those  sections.  In  the  absence  of  record  evidence  to  the  contrary,  we  continue  to  believe  that  the  requirements  of  checklist  item  3  remain 
 necessary  in  the  Omaha  MSA  to  ensure  that  Qwests  charges  and  practices  are  just  and  reasonable  and  are  not  unjustly  or  unreasonably  discriminatory,  as  well  as  being  necessary  for  the  protection  of  consumers. 

 99.  Furthermore,  we  believe  that  such  a  grant  would  be  contrary  to  the  public  interest  under  section  10(  a)(  3)  and  would  be  harmful  to  competition  among  telecommunications  services  providers  in 
 this  market.  As  amended  by  the  1996  Act,  Congress  in  section  224  intended  to  ensure,  inter  alia,  that  incumbent  LECs  control  over  poles,  ducts,  conduits,  and  rights-  of-  way  does  not  create  a  bottleneck  for 
 the  delivery  of  telecommunications  services  and  certain  other  services.  243  It  therefore  amended  section  224  in  1996  to  give  competitive  LECs  and  cable  operators  a  right  of  access  to  utility  poles,  ducts, 
 conduits  and  rights  of  way,  in  addition  to  maintaining  a  scheme  to  assure  that  the  rates,  terms  and  conditions  governing  such  attachments  are  just  and  reasonable.  We  do  not  believe,  as  Qwest  seems  to 
 assume,  that  the  presence  of  some  retail  competition  in  the  Omaha  MSA  necessarily  demonstrates  that  it  would  enhance  competition  to  grant  Qwest  forbearance  relief  from  its  obligation  to  provide  competitors 
 nondiscriminatory  access  to  its  poles,  ducts,  conduits,  and  rights-  of-  way  at  just  and  reasonable  rates.  In  the  absence  of  evidence  to  the  contrary,  we  find  that  facilities-  based  competition  depends  on  access  to 
 poles,  ducts,  conduits,  and  rights-  of-  way  at  reasonable  rates  to  reach  customers  and  provide  competition  in  the  provision  of  telecommunications  services.  Qwest  has  not  submitted  any  evidence  nor  provided  any 
 explanation  to  show  that  granting  such  relief  would  be  consistent  with  the  public  interest  as  required  by  section  10(  a)(  3),  or  that  shows  how  forbearance  would  promote  competitive  market  conditions.  244 

 242  47  U.  S.  C.    160(  a)(  1),  (2);  see  also,  e.  g.,  Sprint  Comments  at  4;  CompTel  Comments  at  10;  AT&  T  Comments  at 
 32. 
 243  As  initially  enacted  in  1978,  Congress  in  section  224  sought  to  ensure  that  utilities  control  over  poles  and  rights-of- 
 way  did  not  create  a  bottleneck  that  would  stifle  the  growth  of  cable  television  systems  that  use  poles  and  rights-of-  way.  The  1996  Act  amended  section  224  in  important  respects.  As  amended  by  the  1996  Act,  section  224 

 defines  a  utility  as  one  who  is  a  local  exchange  carrier  or  an  electric,  gas,  water,  steam,  or  other  public  utility  and  who  owns  or  controls  poles,  ducts,  conduits,  or  rights-  of-  way  used,  in  whole  or  in  part,  for  wire  communications. 
 47  U.  S.  C.    224(  a).  The  1996  Act,  however,  specifically  excluded  incumbent  LECs  from  the  definition  of  telecommunications  carriers  with  rights  as  pole  attachers.  See  47  U.  S.  C.    224(  a)(  5).  Because  an  incumbent  LEC  is 
 a  utility  and  not  a  telecommunications  carrier  for  purposes  of  section  224,  an  incumbent  LEC  must  grant  other  telecommunications  carriers  and  cable  operators  access  to  its  poles,  ducts,  conduits,  and  rights-  of-  way,  even  though 
 an  incumbent  LEC  has  no  rights  under  section  224  with  respect  to  those  of  other  utilities.  This  is  consistent  with  Congresss  intent  that  section  224  promote  competition  by  ensuring  the  availability  of  access  to  new 
 telecommunications  entrants.  See  Conference  Report  to  S.  652  and  Joint  Explanatory  Statement  of  the  Committee  of  Conference,  104th  Cong.,  2d  Sess.  98-  100,  113. 

 244  47  U.  S.  C.    160(  a)(  3),  (b). 
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 c.  Checklist  Items  4-  6  (Loops,  Transport  and  Switching) 
 100.  We  deny  Qwests  Petition  for  forbearance  to  the  extent  Qwest  seeks  relief  from  its  section  271(  c)(  2)(  B)  obligations  to  provide  access  to  loops,  transport  and  switching  in  the  Omaha  MSA  (i.  e., 
 checklist  items  4-  6).  245  In  contrast  to  checklist  items  1  through  3  and  14,  which  incorporate  by  reference  other  provisions  of  the  Act,  checklist  items  4  through  6  establish  independent  and  ongoing  obligations  for 
 BOCs  to  provide  wholesale  access  to  loops,  transport  and  switching,  irrespective  of  any  impairment  analysis  under  section  251  to  provide  unbundled  access  to  such  elements.  246  We  conclude  that  Qwest  has 
 not  shown  that  checklist  items  4  through  6  are  unnecessary  to  ensure  that  Qwests  charges  and  practices  are  just  and  reasonable  and  not  unreasonably  discriminatory,  nor  unnecessary  to  ensure  that  consumers 
 interests  are  protected.  247  We  instead  conclude  that  granting  Qwests  Petition  would  not  be  in  the  public  interest  and  would  likely  harm  competition  in  the  provision  of  telecommunications  services  in  the  Omaha 
 MSA.  248 
 101.  As  an  initial  matter,  we  clarify  that  the  scope  of  our  inquiry  in  this  section  is  limited.  The  analysis  below  pertains  only  to  loop,  transport  and  switching  elements  that  need  not  be  unbundled 

 pursuant  to  section  251(  c)(  3)  and  for  which  we  have  not  already  forborne  from  section  271  access  obligations.  First,  we  deny  Qwests  forbearance  Petition  to  the  extent  it  seeks  relief  from  obligations  to 
 provide  access  to  loops,  transport  and  switching  under  section  271  when  Qwest  also  has  an  obligation  to  provide  the  same  network  elements    for  example,  loops  in  those  wire  centers  where  we  have  neither 
 forborne  from  section  251(  c)(  3)  in  this  Order  nor  found  non-  impairment  in  the  Triennial  Review  Remand  Order    pursuant  to  section  251(  c).  For  this  class  of  network  elements,  even  if  we  were  to  forbear  from 
 sections  271(  c)(  2)(  B)(  iv)-(  vi),  which  require  just  and  reasonable  pricing  under  sections  201  and  202,  Qwest  would  still  be  obligated  to  provide  access  to  these  network  elements  pursuant  to  section  251(  c)(  3) 
 at  more  specific  TELRIC  prices.  249  To  the  extent  that  section  271(  c)(  2)(  B)  imposes  an  obligation  no  greater  than  section  251(  c)(  3),  and  where  that  section  251(  c)(  3)  obligation  still  applies,  we  deny  Qwests 

 245  Section  271(  c)(  2)(  B)(  iv)  of  the  Act  requires  that  a  BOC  provide  [  l]  ocal  loop  transmission  from  the  central 
 office  to  the  customers  premises,  unbundled  from  local  switching  or  other  services.  47  U.  S.  C.    271(  c)(  2)(  B)(  iv).  Section  271(  c)(  2)(  B)(  v)  requires  a  BOC  to  provide  [  l]  ocal  transport  from  the  trunk  side  of  a  wireline  local 

 exchange  carrier  switch  unbundled  from  switching  or  other  services.  47  U.  S.  C.    271(  c)(  2)(  B)(  v).  Section  271(  c)(  2)(  B)(  vi)  requires  a  BOC  to  provide  [  l]  ocal  switching  unbundled  from  transport,  local  loop  transmission,  or 
 other  services.  47  U.  S.  C.    271(  c)(  2)(  B)(  vi);  see  also  Verizon  Pennsylvania  Section  271  Order,  16  FCC  Rcd  at  17532-  536,  paras.  48-  56. 

 246  See  Triennial  Review  Order,  18  FCC  Rcd  at  17384,  para.  653;  see  also  Implementation  of  the  Local  Competition 
 Provisions  of  the  Telecommunications  Act  of  1996,  CC  Docket  No.  96-  98,  Third  Report  and  Order  and  Fourth  Further  Notice  of  Proposed  Rulemaking,  15  FCC  Rcd  3696,  3905,  para.  471  (1999)  (UNE  Remand  Order).  As  the 

 Commission  previously  has  explained,  this  interpretation  of  the  Act  best  comports  with  the  plain  meaning  of  the  statute  and  avoids  other  problems  of  statutory  construction.  The  Commission  also  has  explained  that  it  is  reasonable 
 to  conclude  that  section  251  and  section  271  establish  independent  obligations  because  the  entities  to  which  these  provisions  apply  are  different    namely,  section  251(  c)  applies  to  all  incumbent  LECs,  while  section  271  imposes 
 obligations  only  on  BOCs.  See  Triennial  Review  Order,  18  FCC  Rcd  at  17385,  para.  655. 
 247  47  U.  S.  C.    160(  a)(  1)-(  2). 

 248  Id.  at    160(  a)(  3). 
 249  See  Triennial  Review  Order,  18  FCC  Rcd  17386,  para.  656. 
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 Petition  for  the  reasons  articulated  above.  250  Second,  after  Qwest  filed  its  Petition  in  the  present  proceeding,  the  Commission  in  the  Section  271  Broadband  Forbearance  Order  granted  forbearance 
 petitions  filed  by  Qwest  and  the  other  BOCs  to  the  extent  they  sought  relief  from  section  271  unbundling  obligations  applicable  to  the  broadband  network  elements  that  the  Commission,  on  a  national  basis, 
 relieved  from  section  251(  c)(  3)  unbundling  obligations  in  the  Triennial  Review  Order  and  subsequent  reconsideration  orders.  251  These  elements  include  FTTH  loops,  FTTC  loops,  the  packetized  functionality 
 of  hybrid  loops,  and  packet  switching.  252  Because  the  Commission  already  has  granted  Qwest  forbearance  from  its  section  271  obligations  for  such  broadband  elements,  its  Petition  to  that  extent  is 
 moot. 
 102.  In  the  remainder  of  this  section,  therefore,  we  address  only  loops,  switching  and  transport  elements  not  subject  to  unbundling  requirements  pursuant  to  section  251(  c)(  3)  that  Qwest  must  provide 

 pursuant  to  sections  271(  c)(  2)(  B)(  iv)-(  vi),  which  for  convenience  we  refer  to  in  this  order  as  legacy  elements.  253  The  legacy  elements  encompassed  by  the  discussion  below  include  network  elements  that 
 the  Commission  has  determined  do  not  require  unbundling  pursuant  to  section  251(  c)(  3).  Such  network  elements  include,  among  other  elements,  local  circuit  switching;  transport  in  wire  centers  in  cases  in 
 which  the  impairment  measurements  set  forth  in  the  Triennial  Review  Remand  Order  are  not  satisfied;  and  loops  and  transport  in  the  9  wire  center  service  areas  where  we  forbear  from  applying  Qwests  section 
 251(  c)(  3)  unbundling  obligations  today.  254 
 (i)  Section  10(  a)(  1)    Charges,  Practices,  Classifications,  and  Regulations 

 103.  We  conclude  that  Qwest  has  not  demonstrated  that  sufficient  facilities-  based  competition  exists  in  the  Omaha  MSA  to  justify  forbearance  from  Qwests  wholesale  access  obligations  under 
 sections  271(  c)(  2)(  B)(  iv)-(  vi).  We  find  that  while  section  10(  a)  is  satisfied  with  respect  to  forbearance  from  certain  section  251(  c)(  3)  unbundling  requirements  for  loops  and  transport,  that  measure  of 
 deregulation  is  predicated  upon  the  availability  of  other  regulatory  protections  that  function  as  a  backstop  to  prevent  harm  to  competition    including,  most  notably  here,  section  271(  c).  In  the  absence  of 
 sufficient  competition,  we  are  concerned  that  the  telecommunications  services  available  to  customers  might  not  be  offered  on  just,  reasonable  and  nondiscriminatory  terms.  This  concern  is  heightened 
 because  the  Commission  has  determined  that  the  appropriate  pricing  inquiry  for  network  elements  made 

 250  See  supra  Part  III.  E.  1.  a  (explaining  that  it  would  not  make  sense  to  forbear  from  a  section  271  obligation  when 
 the  same  obligation  applies  under  a  different  provision  of  the  Act). 
 251  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21504,  para.  19;  see  also  MDU  Reconsideration 
 Order,  19  FCC  Rcd  15856  (extending  FTTH  rules  to  MDUs  that  are  predominantly  residential);  FTTC  Reconsideration  Order,  19  FCC  Rcd  20293  (2004). 

 252  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21504,  para.  19. 
 253  We  clarify  that  our  use  of  the  terms  legacy  elements  and  legacy  services  are  intended  simply  as  a  shorthand 
 to  help  explain  our  reasoning  in  the  present  case.  We  are  not  defining  legacy  services  to  be  a  new  regulatory  category  and  our  use  of  legacy  elements  and  legacy  services  in  this  order  has  no  application  beyond  the  scope 

 of  the  present  order. 
 254  See  generally  Triennial  Review  Order;  Triennial  Review  Remand  Order. 
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 available  pursuant  to  section  271  is  to  assess  whether  they  are  priced  on  a  just,  reasonable  and  not  unreasonably  discriminatory  basis.  We  therefore  are  concerned  that  relieving  Qwest  from  this  obligation 
 might  result  in  prices  that  do  not  satisfy  that  standard.  255  On  the  basis  of  the  analysis  above,  we  conclude  that  Qwests  Petition  does  not  satisfy  the  standard  for  forbearance  set  forth  in  section  10(  a)(  1)  for  any 
 services  Qwest  must  provide  pursuant  to  checklist  items  4  through  6. 
 104.  The  economic  barriers  to  self-  providing  facilities  can  be  substantial,  256  and  can  differ  from  city  to  city,  within  the  same  city,  or  between  a  city  and  its  suburbs  because  of  differences  in  municipal 

 right-  of-  way  and  permitting  policies,  as  well  as  conduit  availability,  among  other  factors.  257  When  the  Commission  established  its  impairment  determinations,  it  did  so  at  a  level  designed  to  provide  incentives 
 for  self-  provisioning  competitive  facilities,  rather  than  based  on  a  finding  that  in  all  cases  self-provisioning  of  competitive  facilities  is  economically  feasible.  258  As  a  result,  the  Commissions 
 impairment  determinations  necessarily  sometimes  are  under-  inclusive.  259  In  other  words,  it  sometimes  is  not  feasible  for  a  reasonably  efficient  competitive  carrier  economically  to  construct  all  of  the  facilities 
 necessary  to  provide  a  telecommunications  service  to  a  particular  customer  despite  not  being  impaired  under  the  Commissions  rules  without  access  to  such  facilities.  260  In  addition,  even  when  it  is 
 economically  feasible  for  a  reasonably  efficient  competitor  to  construct  such  facilities,  the  construction  of  local  loops  generally  takes  between  six  to  nine  months  absent  unforeseen  delay.  261  In  order  to  provide 
 service  to  customers,  competitive  LECs  therefore  may  require  wholesale  access  to  Qwests  network  on  a  temporary  basis  while  they  construct  their  own  facilities  to  their  customers  premises.  262  If  carriers  lacked 
 wholesale  access  to  Qwests  network  elements  in  such  cases,  they  sometimes  would  not  be  able  to  provide  service  to  that  customer.  The  record  contains  no  evidence  to  indicate  that  such  an  outcome  would 
 be  a  rare  occurrence. 
 105.  In  addition,  if  we  would  now  forbear  from  sections  271(  c)(  2)(  B)(  iv)  and  (v),  we  could  no  longer  fully  rely  on  two  of  the  three  bases  upon  which  we  based  our  conclusion  that  forbearance  from 

 section  251(  c)(  3)  obligations  for  loops  and  transport  in  certain  wire  centers  is  warranted.  Our  justification  for  forbearing  from  Qwests  section  251(  c)(  3)  obligations  for  loops  and  transport  in  certain  areas  depends 
 in  part  on  the  continued  applicability  of  Qwests  wholesale  obligations  to  provide  these  network  elements  under  sections  271(  c)(  2)(  B)(  iv)  and  (v).  Specifically,  we  determined  above  to  forbear  in  certain  wire 

 255  See  Triennial  Review  Order,  18  FCC  Rcd  17386,  para.  656. 
 256  See,  e.  g.,  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2615-  18,  paras.  149-  54. 
 257  See,  e.  g.,  id.  at  2579,  para.  73  n.  209. 
 258  See  id. 
 259  See  USTA  II,  359  F.  3d  at  570  (noting  the  inevitability  of  some  over-  and  under-  inclusiveness  in  the 
 Commissions  unbundling  rules). 
 260  See,  e.  g.,  Triennial  Review  Remand  Order,  20  FCC  Rcd  at  2547-  49,  paras.  24-  28  (discussing  the  reasonably 
 efficient  competitor  standard). 
 261  See  id.  at  2616,  para.  151  (discussing  factors  that  might  create  much  longer  delays). 

 262  See  id.  at  2635,  para.  185  (explaining  that  carriers  will  only  construct  fiber  loops  in  order  to  serve  a  demand  for 
 service  from  a  customer). 
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 centers  from  the  application  of  section  251(  c)(  3)  to  loops  and  transport  in  the  Omaha  MSA  based  on  facilities-  based  competition  provided  by  Cox,  and  based  on  retail  competition  that  in  part  depends  on 
 Qwests  wholesale  offerings,  and  based  on  the  potential  competition  facilitated  by  the  Commissions  other  rules,  including  the  checklist  items  under  discussion  here.  We  therefore  see  no  tension  in  granting 
 Qwest  forbearance  from  section  251(  c)(  3)  unbundling  obligations  for  loops  and  transport  even  though  we  do  not  grant  Qwest  forbearance  from  section  271  wholesale  access  obligations.  We  note  that  in  granting 
 Qwest  forbearance  from  its  obligation  to  provide  unbundled  access  to  loops  and  transport  pursuant  to  section  251(  c)(  3),  consistent  with  the  language  of  the  Act,  we  determined  that  the  application  of  section 
 251(  c)(  3)  with  its  TELRIC  pricing  standard  was  not  necessary  in  certain  wire  centers  to  ensure  that  the  standards  of  section  10(  a)  are  satisfied.  We  did  not  determine  that  Qwests  provision  of  wholesale  access 
 to  loops  and  transport  was  no  longer  necessary  to  ensure  that  the  standards  of  section  10(  a)  are  satisfied.  As  just  explained,  we  reached  the  opposite  conclusion,  and  affirm  that  conclusion  here  as  applied  to 
 Qwests  wholesale  access  obligations  under  checklist  items  4  through  6,  which  operate  under  the  just,  reasonable  and  non-  discriminatory  pricing  standard. 

 106.  Our  determination  today  not  to  grant  Qwest  additional  forbearance  relief  from  its  unbundling  obligations  under  sections  271(  c)(  2)(  B)(  iv)-(  vi)  for  its  legacy  elements  also  finds  support  in 
 the  Commissions  Section  271  Broadband  Forbearance  Order.  There,  the  Commission  found  that  the  broadband  market  is  still  an  emerging  and  changing  market,  where  .  .  .  the  preconditions  for  monopoly 
 are  not  present.  263  Specifically,  the  Commission  recognized  that  numerous  intermodal  broadband  competitors  are  beginning  to  emerge  and  that  cable  modem  providers  have  already  had  success  in 
 acquiring  residential  and  small-  business  customers.  264  Further,  the  Commission  recognized  that,  in  order  effectively  to  compete  for  the  provision  of  broadband  services,  the  BOCs  generally  would  need  to 
 upgrade  their  networks  substantially  with  new  fiber  technologies.  However,  because  section  271  unbundling  obligations  create  disincentives  for  the  BOCs  to  make  substantial  investments  in  these  new 
 fiber  technologies,  in  accord  with  our  nations  policy  goals  of  trying  to  provide  all  carriers,  including  BOCs,  with  incentives  to  make  such  investments,  the  Commission  concluded  that  forbearance  relief  was 
 justified.  265  As  additional  support  for  its  decision  in  the  Section  271  Broadband  Forbearance  Order,  the  Commission  stressed  its  expectation  that  the  emerging  competition  from  multiple  sources  and 
 technologies  in  the  retail  broadband  market,  would  be  likely  to  pressure  the  BOCs  to  utilize  wholesale 
 263  See  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21505,  para.  22. 
 264  The  Commission  noted  at  the  time  that  focusing  its  analysis  to  this  degree  on  the  retail  market  was  unusual.  See 
 id.  at  21505,  para.  20  (noting  that  [  a]  lthough  in  other  forbearance  orders,  the  Commission  placed  emphasis  on  the  wholesale  aspect  of  the  10(  a)(  1)  prong,  with  respect  to  its  analysis  of  these  new  fiber  technologies,  it  was 

 appropriate  to  consider  the  wholesale  market  in  conjunction  with  competitive  conditions  in  the  downstream  retail  broadband  market). 

 265  Specifically,  the  Commission  concluded  that  the  developing  nature  of  the  broadband  market  at  both  the 
 wholesale  and  retail  levels,  including  the  ongoing  introduction  of  new  services  and  deployment  of  new  facilities,  leads  us  to  conclude  that  the  contribution  of  section  271  unbundling  requirements  to  ensuring  just  and  reasonable 

 charges  and  practices  is  relatively  modest    particularly  at  the  retail  level    and  outweighed  by  the  greater  competitive  pressure  that  would  be  brought  to  bear  on  all  providers  if  the  section  271  unbundling  requirements  were 
 lifted.  Id.  at  21505,  para.  21;  see  also  47  U.  S.  C.    157  nt  (directing  the  Commission  to  encourage  the  deployment  on  a  reasonable  and  timely  basis  of  advanced  telecommunications  capability  to  all  Americans  by  using  regulatory 
 measures  that  promote  competition  in  the  local  telecommunications  market  and  remove  barriers  to  infrastructure  investment). 
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 customers  to  grow  their  share  of  the  broadband  markets  and  thus  the  BOCs  will  offer  such  customers  reasonable  rates  and  terms  in  order  to  retain  their  business.  266  Furthermore,  the  Commission  held  that 
 even  if  its  prediction  were  wrong  that  competitive  providers  of  retail  broadband  services  would  be  able  to  rely  on  reasonably  priced  wholesale  broadband  offerings,  these  competitive  providers  would  still  be  able 
 to  access  other  network  elements  to  compete  in  the  broadband  market.  267  Qwest  now  seeks  additional  forbearance  relief  from  any  obligation  to  make  these  other  network  elements  available. 

 107.  The  reasoning  that  formed  the  basis  of  the  Commissions  decision  to  forbear  from  applying  the  section  271  network  access  requirements  to  certain  of  the  BOCs  broadband  facilities  does  not  extend 
 to  Qwests  legacy  elements.  The  supply  market  for  legacy  services  is  quite  different  from  the  supply  market  for  broadband  services.  As  explicitly  recognized  in  section  706,  it  is  important  for  this 
 Commission  to  remove  investment  disincentives  that  apply  to  broadband  services  in  order  to  encourage  the  construction  of  next  generation  facilities  to  customers  nationwide.  In  contrast,  the  policies  of  section 
 706  do  not  apply  to  already-  constructed  legacy  elements.  268  In  this  context,  we  see  no  reason  to  forbear  from  section  271(  c)  obligations  in  order  to  provide  Qwest  additional  incentive  to  upgrade  its  legacy 
 network  facilities.  We  also  see  no  reason  to  forbear  from  section  271(  c)  obligations  to  give  Qwests  competitors  additional  incentive  to  construct  their  own  facilities,  because  the  section  271(  c)  obligations 
 do  not  require  Qwest  to  provide  wholesale  access  under  a  cost-  based  pricing  requirement.  269  Instead,  we  believe  that  the  competitive  market  pressures  evident  in  the  Omaha  MSA  create  appropriate  incentives 
 that  will  guide  Qwest  and  its  competitors  in  their  decisions  regarding  when  to  upgrade  their  facilities  or  construct  new  facilities  to  better  serve  legacy  customers. 

 (ii)  Section  10(  a)(  2)    Protection  of  Consumers 
 108.  In  order  to  forbear  from  applying  to  Qwest  the  section  271(  c)(  2)(  B)  obligations  to  provide  access  to  loops,  transport  and  switching  in  the  Omaha  MSA,  section  10(  a)(  2)  requires  us  to  analyze 

 whether  such  application  is  necessary  to  ensure  the  protection  of  consumers.  270  For  reasons  similar  to  those  that  persuade  us  that  Qwest  has  not  demonstrated  that  these  requirements  as  applied  to  its  legacy 
 elements  are  not  necessary  within  the  meaning  of  section  10(  a)(  1),  we  also  conclude  that  Qwest  has  not  demonstrated  that  these  requirements  are  unnecessary  for  the  protection  of  consumers  under  section 
 10(  a)(  2).  Because  we  have  explained  these  reasons  at  length  above,  we  do  not  repeat  that  discussion  here. 
 (iii)  Section  10(  a)(  3)    Public  Interest 
 109.  Finally,  Qwest  has  not  shown  that  it  satisfies  the  requirements  of  section  10(  a)(  3).  Section  10(  a)(  3)  requires  us  to  analyze  whether  forbearance  would  be  consistent  with  the  public  interest.  271 

 266  Section  271  Broadband  Forbearance  Order,  19  FCC  Rcd  at  21508,  para.  26  (emphasis  added). 
 267  Id. 
 268  See  CompTel  Sept.  9,  2005  Ex  Parte  Letter  at  2  (arguing  that  there  is  no  linkage  between  deregulation  of  existing 
 legacy  telecommunications  facilities  and  new  investment). 
 269  See  supra  Part  III.  D.  1.  c  (discussing  the  costs  of  unbundling). 

 270  47  U.  S.  C.    160(  a)(  2). 
 271  Id.  at    160(  a)(  3). 
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 Specifically,  we  must  consider  whether  forbearance  from  the  application  to  Qwest  of  its  obligations  under  checklist  items  4  through  6  will  promote  competitive  market  conditions,  including  the  extent  to  which 
 such  forbearance  will  enhance  competition  among  providers  of  telecommunications  services.  272  We  do  not  believe  eliminating  Qwests  section  271  access  obligations  for  legacy  facilities  would  enhance 
 competition  in  the  Omaha  MSA  as  contemplated  in  section  10. 
 110.  In  the  Omaha  MSA,  where  retail  competition  often  is  based  on  the  use  of  Qwests  facilities,  eliminating  the  requirement  to  provide  wholesale  access  to  Qwests  loops,  switching  and  transport 

 elements  is  likely  to  result  in  a  reduction  of  the  very  competition  Qwest  relies  on  to  justify  granting  its  Petition.  273  We  find  that  competitors  in  the  Omaha  MSA  continue  to  need  access  to  Qwests  facilities  to 
 serve  many  locations.  For  instance,  AT&  T  claims  that  even  in  the  most  densely  populated  areas  of  the  MSA,  where  competitive  deployment  is  in  general  most  likely,  it  is  still  dependent  upon  Qwest  facilities 
 for  the  vast  majority  of  its  enterprise  customer  locations.  274  Cox  appears  to  be  Qwests  only  competitor  in  this  market  to  compete  primarily  over  its  own  last-  mile  facilities    and  yet  Cox  does  not  provide 
 coverage  in  a  significant  portion  of  Qwests  service  area.  275  The  record  does  not  reflect  any  significant  alternative  sources  of  wholesale  inputs  for  carriers  in  this  geographic  market.  276  We  are  not  willing,  nor 
 are  we  able  under  the  Act,  to  undercut  the  basis  of  this  competition  in  the  absence  of  a  demonstration  that  relieving  Qwest  from  its  section  271  obligations  would  be  consistent  with  the  public  interest  and  promote 
 competitive  market  conditions  by  enhancing  competition  among  providers  of  telecommunications  services.  Qwest  has  not  made  this  showing  and  we  must  therefore  deny  its  request. 

 F.  Regulation  as  an  Incumbent  Local  Exchange  Carrier 
 111.  We  reject  Qwests  request  for  forbearance  from  regulation  as  an  incumbent  LEC  in  the  Omaha  MSA,  because  Qwest  fails  sufficiently  to  identify  the  objects  of  its  request  and  fails  to  explain 

 how  granting  its  request  would  affect  the  public  interest  and  other  criteria  of  section  10(  a).  277  Qwest  states  that  it  seeks  forbearance  from  regulation  as  an  ILEC  pursuant  to  section  251(  h)(  1).  278  Section 
 251(  h)(  1)  is  the  section  of  the  Act  that  defines  incumbent  LEC.  279  Qwest  does  not  point  to  any 

 272  Id.  at    160(  b). 
 273  Id.  at    160(  b).  While  Qwest  contends  that  [  c]  ompetitive  providers  have  other  market  entry  options  in  those 
 areas  where  they  choose  not  to  deploy  facilities,  the  record  does  not  support  this  contention  to  the  extent  Qwest  claims  a  wholesale  market  exists  for  telecommunications  services  relevant  to  this  proceeding.  Qwest  Petition  at  17. 

 274  AT&  T  Selwyn  Decl.  at  paras.  18,  51. 
 275  Cox,  which  Qwest  cites  as  its  strongest  competitor  in  the  Omaha  MSA,  apparently  has  no  coverage  whatsoever 
 in  [REDACTED]  of  the  24  wire  centers  that  make  up  Qwests  territory,  and  only  limited  coverage  in  many  of  Qwests  other  wire  centers  in  this  market.  See  Cox  June  30,  2005  Ex  Parte  Letter. 

 276  See  supra  note  176. 
 277  See  Petition  at  37-  39. 
 278  Id.  at  38. 
 279  See  47  U.  S.  C.    251(  h)(  1).  Qwest  states  that  one  route  to  granting  its  forbearance  request  would  be  first  to 
 declare  Cox  an  incumbent  LEC,  based  in  part  on  a  finding  that  Cox  has  substantially  replaced  Qwest  as  the  incumbent  LEC  in  the  Omaha  MSA,  and  then  forbear  from  incumbent  LEC  regulation  as  applied  to  both  Qwest  and 

 (continued.) 
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 substantive  obligations  of  incumbent  LECs  from  which  it  might  seek  relief.  Other  than  the  section  251(  c)  claims  that  Qwest  pleads  and  we  evaluate  separately,  the  only  regulation  Qwest  identifies  as  applying  to  it 
 as  a  result  of  its  status  as  an  incumbent  LEC    section  54.309(  a)  of  the  Commissions  rules    is  a  regulation  from  which  Qwest  does  not  seek  forbearance.  280  Neither  Qwest  nor  any  commenter  has 
 pointed  to  any  authority  that  would  compel  the  Commission  to  infer  which  regulations  or  statutory  provisions  are  encompassed  by  Qwests  general  request.  We  decline  to  speculate  from  what  regulations 
 or  provisions  of  the  Act  Qwest  would  like  forbearance  other  than  those  it  specifically  identifies,  and  then  to  compose  on  Qwests  behalf  an  affirmative  case  for  such  relief.  281 

 IV.  EFFECTIVE  DATE 
 112.  Consistent  with  Section  10  of  the  Act  and  our  rules,  the  Commissions  forbearance  decision  shall  be  effective  on  Friday,  September  16,  2005.  282  The  time  for  appeal  shall  run  from  the  release  date  of 
 this  order.  283 
 V.  ORDERING  CLAUSES 
 113.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  section  160  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    160(  d),  Qwest  Corporations  Petition  for  Forbearance  is  GRANTED  to 
 the  extent  described  herein  and  is  otherwise  DENIED. 

 (Continued  from  previous  page)  Cox.  See  Petition  at  38  (acknowledging  that  such  a  process  would  be  inefficient).  Section  251(  h)  provides  that  the 
 Commission  may  by  rule,  provide  for  the  treatment  of  a  LEC  as  an  incumbent  LEC  if  certain  conditions  are  met.  47  U.  S.  C.    251(  h)(  2)  (emphasis  added);  see  also  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,  Notice  of  Proposed  Rulemaking,  19  FCC  Rcd  23070  (2004)  (opening  a  rulemaking  proceeding 
 to  determine  how  section  251(  h)(  2)  should  be  applied  to  the  specific  factual  situation  in  Terry,  Montana  as  well  as  to  future  petitions  filed  under  section  251(  h)(  2)).  Because  the  present  proceeding  is  not  a  rulemaking  proceeding, 
 we  do  not  reach  the  merits  of  Qwests  suggestion.  See  Letter  from  David  Cosson,  Counsel  to  Mid-  Rivers  Telephone  Cooperative,  Inc.,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  04-  223  (filed  Sept.  7,  2005) 
 (stating  that  the  petition  filed  by  Mid-  Rivers  pursuant  to  section  251(  h)  and  Qwests  Petition  are  brought  under  different  provisions  of  the  Communications  Act). 

 280  See  Petition  at  38  n.  108. 
 281  Cf.  Petition  of  SBC  Communications  Inc.,  for  Forbearance  from  the  Application  of  Title  II  Common  Carrier 
 Regulation  to  IP  Platform  Services,  Memorandum  Opinion  and  Order,  WC  Docket  No.  04-  29,  20  FCC  Rcd  9361,  9366-  67,  paras.  14-  17  (2005)  (denying  forbearance  petition  for,  inter  alia,  lack  of  specificity). 

 282  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). 
 283  See  47  C.  F.  R.    1.4,  1.13. 
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 114.  IT  IS  FURTHERED  ORDERED  that,  pursuant  to  section  10  of  the  Communications  Act  of  1934,  47  U.  S.  C.    160,  and  section  1.103(  a)  of  the  Commissions  rules,  47  C.  F.  R.    1.103(  a),  the 
 Commissions  forbearance  decision  SHALL  BE  EFFECTIVE  on  September  16,  2005.  Pursuant  to  sections  1.4  and  1.13  of  the  Commissions  rules,  47  C.  F.  R.    1.4  and  1.13,  the  time  for  appeal  shall  run 
 from  the  release  date  of  this  Order. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Marlene  H.  Dortch  Secretary 
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 APPENDIX  LIST  OF  COMMENTERS 
 Comments  in  WC  Docket  No.  04-  223 
 Comments  Abbreviation  Association  for  Local  Telecommunications 
 Services  ALTS  AT&  T  Corp.  AT&  T 
 CompTel/  ASCENT  CompTel  Cox  Communications,  Inc.  Cox 
 Independent  Telephone  &  Telecommunications  Alliance  ITTA 
 Iowa  Utilities  Board  Iowa  Utils.  Bd.  McLeodUSA  Telecommunications  Services,  Inc.  McLeodUSA 
 MCI,  Inc.  MCI  Sprint  Corporation  Sprint 
 Time  Warner  Telecom  TWTC 
 Replies  in  WC  Docket  No.  04-  223 
 Replies  Abbreviation  Ad  Hoc  Telecommunications  Users  Committee  Ad  Hoc 

 BellSouth  Corporation  BellSouth  Nebraska  Public  Service  Commission  Nebraska  PSC 
 Qwest  Corporation  Qwest  SBC  Communications  Inc.  SBC 
 United  States  Telecom  Association  USTA  Verizon  Telephone  Companies  Verizon 
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 STATEMENT  OF  CHAIRMAN  KEVIN  J.  MARTIN 
 Re:  Petition  of  Qwest  Corporation  for  Forbearance  Pursuant  to  47  U.  S.  C.    160(  c)  in  the  Omaha  Metropolitan  Statistical  Area,  Memorandum  Opinion  and  Order 
 (WC  Docket  No.  04-  223) 
 With  this  Order,  we  witness  the  fruits  of  the  Telecommunications  Act  of  1996.  In  the  nearly  10  years  since  the  passage  of  this  Act,  Cox  has  become  a  formidable  competitor  to  Qwest  in  the  Omaha 
 MSA.  Accordingly,  based  on  the  specific  market  facts  that  have  been  placed  before  us,  we  are  compelled  under  the  pro-  competitive,  deregulatory  framework  established  by  Congress,  as  well  as  under  section 
 10s  forbearance  criteria,  to  grant  Qwest  relief  from  the  continued  application  of  legacy  regulations. 
 This  Order  is  significant  in  two  respects.  First,  it  is  first  time  that  we  have  forborne  from  enforcing  unbundling  requirements  under  section  251(  c).  Second,  it  is  the  first  time  that  we  have  relieved 
 an  incumbent  LEC  of  legacy  dominant  carrier  regulation  in  the  mass  market.  Cox  has  made  a  substantial  infrastructure  investment  in  the  Omaha  MSA  and  has  used  these  facilities  to  provide  competing  telephone 
 services  to  over  a  hundred  thousand  residential  and  business  customers. 
 This  success  of  intermodal  competition  warrants  the  Commissions  careful  exercise  of  its  forbearance  authority.  Notably,  the  relief  we  grant  today  is  balanced  and  limited  to  the  areas  in  which 
 Cox  has  the  most  significant  facilities  presence.  For  example,  we  grant  unbundling  relief  only  in  those  wire  centers  where  Cox  facilities  pass  a  substantial  number  of  end-  user  locations  served  by  a  particular 
 wire  center.  In  those  areas  where  Cox  does  not  have  such  an  extensive  presence,  no  unbundling  relief  is  granted.  Accordingly,  I  believe  this  Order  strikes  the  right  balance. 
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 CONCURRING  STATEMENT  OF  COMMISSIONERS  MICHAEL  J.  COPPS  AND  JONATHAN  S.  ADELSTEIN 
 Re:  Petition  of  Qwest  Corporation  for  Forbearance  Pursuant  to  47  U.  S.  C.    160(  c)  in  the  Omaha  Metropolitan  Statistical  Area,  Memorandum  Opinion  and  Order 
 (WC  Docket  No.  04-  223) 
 In  todays  decision,  the  Commission  grants  forbearance  from  certain  unbundling  and  dominant  carrier  obligations  in  areas  of  the  Omaha  MSA  where  a  facilities-  based  carrier  has  extensively  built  out  its 
 network  and  taken  significant  market  share  from  the  incumbent  wireline  provider.  While  we  support  the  outcome  in  this  Order  and  believe  it  is  clearly  superior  to  an  automatic  grant  of  the  underlying  petition, 
 we  have  concerns  with  the  analysis  in  this  decision.  As  a  result,  we  choose  to  concur. 
 The  goal  of  the  Telecommunications  Act  of  1996  is  to  establish  a  pro-  competitive,  de-  regulatory  national  policy  framework.  Todays  decision  lives  up  to  this  charge  only  in  part.  This  item  certainly 
 reduces  regulation  by  eliminating  some  incumbent  obligations  and  demonstrates  that  the  Commission  can  respond  to  the  dynamic  marketplace.  But  we  fall  short  when  it  comes  to  promoting  competition.  The 
 Commission  relies  on  the  intermodal  efforts  of  a  single  alternative  provider  a  provider  with  substantially  greater  resources  than  other  competitors  to  conclude  that  the  Omaha  MSA  is  fully 
 competitive  and  to  carve  away  both  retail  and  wholesale  obligations.  While  we  agree  that  there  is  especially  strong  evidence  of  competition  between  the  incumbent  cable  and  wireline  providers  in  this 
 market,  we  believe  the  statute  contemplates  more  than  just  competition  between  a  wireline  and  cable  provider  and  that  both  residential  and  business  consumers  deserve  more. 
61